HQ 956677: ceramic microwavable hotplate; ceramic article; Note 1 and Additional U.S. Note 1, Chapter 69; other ceramic tableware, kitchenware, other household articles and toilet articles, other than of porcelain or china; EN 69.12; NAFTA; Article 509; General Note 12(b)(ii)(A); originating good; non-originating material; tariff shift; General Note 12(t)/69; 19 CFR 134.1(b); country of origin; Marking Rules; 134.1(j), (g); 134.45(a)(2); 134.43(e); 102.11(a)(3), (b)(1), (c), and (d)(1); 102.20(m); 102.1(e), (n), and (o); production; foreign material; simple assembly; NY 898114 affirmed

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 956677

                          April 4, 1995
CLA-2 R:C:M 956677 KCC

CATEGORY:  Classification

TARIFF NO.:  6912.00.48

Mr. Philip Freeman
Cain Customs Brokers
Progreso International Bridge
P.O. Box 10
Progreso, Texas 78579

RE:  ceramic microwavable hotplate; ceramic article; Note 1 and Additional U.S. Note 1,
     Chapter 69; other ceramic tableware, kitchenware, other household articles and toilet
     articles, other than of porcelain or china; EN 69.12; NAFTA; Article 509; General Note
     12(b)(ii)(A); originating good; non-originating material; tariff shift; General Note 12(t)/69;
     19 CFR 134.1(b); country of origin; Marking Rules; 134.1(j), (g); 134.45(a)(2);
     134.43(e); 102.11(a)(3), (b)(1), (c), and (d)(1); 102.20(m); 102.1(e), (n), and (o);
     production; foreign material; simple assembly; NY 898114 affirmed

Dear Mr. Freeman:

     This is in response to your letter of June 27, 1994, on behalf of IMTCO, Inc., requesting 
reconsideration of New York (NY) 898114 dated June 3, 1994, issued by Area Director, New
York Seaport, which classified a ceramic microwavable hotplate under subheading 6912.00.48,
Harmonized Tariff Schedule of the United States (HTSUS), as other ceramic tableware,
kitchenware, other household articles and toilet articles, other than of porcelain or china. 
Additionally, you seek a determination regarding the country of origin and applicability of the
North American Free Trade Agreement (NAFTA), to the ceramic hotplate.  A sample, bill of
materials, cost and weight comparisons and advertising literature were submitted for our
examination.  We regret the delay in responding.

FACTS:

     New York (NY) 898114, classified the ceramic hotplate under subheading 6912.00.48,
Harmonized Tariff Schedule of the United States (HTSUS), which provides for "Ceramic
tableware, kitchenware, other household articles and toilet articles, other than of porcelain or
china...Tableware and kitchenware...Other...Other...Other...Other...."  NY 898114 described the
ceramic hotplate as follows:

     The sample submitted is a ceramic "microwavable hotplate"  which consists of a 6 inch
     square ceramic plate encompassed by a inert binder, composed from the urethane family of
     chemicals, which serves both as a support and stand for the plate.  It is stated that this
     "hotplate" is designed to be placed in a microwave oven and heated for a desired time.  It
     is further claimed that the longer the plate is heated in the microwave, the longer this plate
     will remain hot (noting that the inert binder is not heated by the RF waves of the
     microwave oven).

     You now state that some of the information contained in your original ruling request of
May 11, 1994, was in error, and therefore, the classification of the ceramic hotplate in NY
898114 is incorrect.  Specifically, your original ruling request stated that the hotplate tiles were all
ceramic.  You now state that the two larger tiles are not ceramic but are silica blocks known as
quarry tile, which is a course-grained material similar to terra-cotta. 

     Additionally, you state that the ceramic hotplates will be produced in two different
manufacturing runs in Mexico from raw materials which are the products of Great Britain, U.S.
and Mexico.  You describe the production operation as follows:

     The hotplate is constructed of 2 silica quarry tiles which collect and store the heat of the
     microwave oven, and a ceramic tile that also collects heat but whose primary purpose is
     decorative.  These tiles are surrounded by an inert binder which is not heated by the RF
     waves of the microwave oven, thus remaining cool to the touch.  This binder is made of
     fine particle sand known as microspheres based on aluminum silicate, to which is added a
     small amount of colorant made of carbon black (FeO2).  A synthetic urethane-family glue
     (Isocyate), is added to the mix to form a dough.  This dough is placed around the quarry
     tile in a mold, and the ceramic tile is placed on top.  An air press compacts the dough
     around the tile.  After release from the mold, the dough material cures at room
     temperature for 24 hours.  The product is sanded and polished to finish, and then packed
     for shipment.

     You submitted the following information regarding the materials used in the two different
manufacturing runs:

1st MANUFACTURING RUN:
Component                Ingredient               Country of Origin

Molded Base                   Alumina Silicate Filler       Great Britain
                         Synthetic Urethane Binder          U.S.
                         Ferrous Oxide Dye             U.S.

Heating Core                  Silica Block                  Great Britain

Decorative Top           Ceramic Tile                  Great Britain

2nd MANUFACTURING RUN:
Component                Ingredient               Country of Origin

Molded Base                   Alumina Silicate Filler       Great Britain
                         Synthetic Urethane Binder          U.S.
                         Ferrous Oxide Dye             U.S.

Heating Core                  Silica Block                  Mexico

Decorative Top           Ceramic Tile                  Mexico

     You submitted the following cost and weight comparisons:

Material       Weight    %Weight        Cost      %Cost

Aluminum Silicate    1.102 lb.     43.71               0.41 lb        0.2137
Synthetic Urethane  0.248 lb.  9.84               1.50 lb.  0.1760
Ferrous Oxide       0.0625 lb.      2.50               1.85 lb.  0.0547
Silica Block        0.563 lb./     22.33               1.50 sq. ft.   0.0788
               0.111 sq. ft.
Ceramic Tile        1 each         21.62               0.423@    0.2000

     The box for the ceramic hotplate has a taped on white label stating:

     Niche Marketing, Inc.   622-D Guilford College Road   Greensboro, NC 27409
     Assembled under License In Mexico  Product of North America.

ISSUE:

I.   Is the ceramic hotplate classified under subheading 6912.00.48, HTSUS, as other ceramic
     tableware, kitchenware, other household articles and toilet articles, other than of porcelain
     or china? 
II.  Is the ceramic hotplate eligible for preferential tariff treatment under the NAFTA pursuant
     to General Note 12(b), HTSUS?
III. What is the country of origin and the proper marking requirements applicable to the
     ceramic hotplate?

LAW AND ANALYSIS:

I.   Tariff Classification

     The classification of merchandise under the HTSUS is governed by the General Rules of
Interpretation (GRI's).  GRI 1, HTSUS, states, in part, that "for legal purposes, classification
shall be determined according to the terms of the headings and any relative section or chapter
notes...."

     NY 898114 classified the ceramic hotplate under subheading 6912.00.48, HTSUS, as
other ceramic tableware, kitchenware, other household articles and toilet articles, other than of
porcelain or china.  You contend that this is incorrect, because the two larger tiles, i.e., the
heating core and decorative top, are not ceramic but silica blocks known as quarry tile, which is a
course-grained material similar to terra-cotta.

     Subheading 6912.00.48, HTSUS, falls within Chapter 69, HTSUS, making the Chapter
69, HTSUS, notes applicable to this classification.  Note 1, Chapter 69, HTSUS, states, in part, 
that "[t]his chapter applies only to ceramic products which have been fired after shaping...." 
Therefore, the two larger tiles must meet the definition of a ceramic article, set forth in Additional
U.S. Note 1, Chapter 69, HTSUS, as follows:

     For the purposes of this chapter, a "ceramic article" is a shaped article having a glazed or
     unglazed body of crystalline or substantially crystalline structure, the body of which is
     composed essentially of inorganic nonmetallic substances and is formed and subsequently
     hardened by such heat treatment that the body, if reheated to pyrometric cone 020, would
     not become more dense, harder, or less porous, but does not include any glass articles.

If the heating core and decorative top meet the requirements of Note 1, and Additional U.S. Note
1, Chapter 69, HTSUS, they will be considered ceramic articles.

     Customs Laboratory Report #3-95-30669-001 dated January 12, 1995, analyzed the
composition of the heating core and decorative top of the ceramic hotplate and found:

     THE SAMPLE CONSISTS OF A GROOVED BASE AND A DECORATIVE TOP
     WHICH ARE BOUND TOGETHER WITH A RESIN AND ARE PART OF A
     MICROWAVEABLE HOTPLATE.  THE BASE IS COMPOSED OF SILICA
     (QUARTZ) AND MULLITE (WHICH WAS PRODUCED ARTIFICIALLY).  THE
     TOP IS OF EARTHENWARE COMPOSED ESSENTIALLY OF CLAY.  THE TOP
     AND BASE EACH MEET THE REQUIREMENTS OF NOTE 1 AND ADDITIONAL
     U.S. NOTE 1 TO CHAPTER 69, HTSUS, FOR CERAMIC ARTICLES.

Based on this laboratory report, we are of the opinion that the heating core and decorative top are
ceramic articles pursuant to Note 1, and Additional U.S. Note 1, Chapter 69, HTSUS.

     In understanding the language of the HTSUS, the Harmonized Commodity Description
and Coding System Explanatory Notes (ENs) may be consulted.  The ENs, although not
dispositive nor legally binding, provide a commentary on the scope of each heading of the HTSUS
and are generally indicative of the proper interpretation of these headings.  See, T.D. 89-80, 54
Fed. Reg. 35127, 35128, (August 23, 1989).  EN 69.12 (pg.  922) states, in pertinent part, that
heading 6912, HTSUS, includes:

     (A)  Tableware such as tea or coffee services, plates, soup tureens, salad bowls, dishes
          and trays of all kinds, coffee-pots, teapots, sugar bowls, beer mugs, cups, sauce-boats, fruit bowls, cruets, salt cellars, mustard pots, egg-cups, teapot stands, table
          mats, knife rests, spoons and serviette rings.

     (B)  Kitchenware such as stew-pans, casseroles of all shapes and sizes, baking or
          roasting dishes, basins, pastry or jelly moulds, kitchen jugs, preserving jars, storage
          jars and bins (tea caddies, bread bins, etc.), funnels, ladles, graduated kitchen
          capacity measures and rolling-pins....

     The ceramic hotplate is similar to the exemplars in EN 69.12.  The ceramic hotplate is
used in the kitchen and on the table as a heating pad and serving pad.  It keeps the dishes warm
and protects table surfaces from hot dishes.  We are of the opinion that it is of the class or kind of
article classified under heading 6912, HTSUS.  Specifically, it is classified under subheading
6912.00.48, HTSUS, as other ceramic tableware, kitchenware, other household articles and toilet
articles, other than of porcelain or china.

II.  NAFTA Eligibility

     To be eligible for tariff preferences under the NAFTA, goods must be "originating goods"
within the rules of origin in General Note 12(b), HTSUS.  In this situation there are two different
manufacturing runs using non-originating components.  Therefore, an examination of both
manufacturing runs must be undertaken.  Because the ceramic hotplate is made from components
imported from non-NAFTA countries,  to be "goods originating in the territory of a NAFTA
party" the goods must be "transformed in the territory of Canada, Mexico and/or the United
States" pursuant to General Note 12(b)(ii)(A), HTSUS, which states:

     except as provided in subdivision (f) of this note, each of the non-originating materials
     used in the production of such goods undergoes a change in tariff classification described
     in subdivision (r), (s) and (t) of this note or the rules set forth therein....

     In this case, we must examine whether the ceramic hotplate is "transformed in the territory
of Canada, Mexico and/or the United States" pursuant to General Note 12(b)(ii)(A), HTSUS. 
The ceramic hotplate is classified under subheading 6912.00.48, HTSUS.  Therefore, a
transformation is evident when a change in tariff classification occurs that is authorized by
General Note 12(t)/69, HTSUS.  General Note 12(t)/69,  HTSUS, states:

     A change to headings 6901 through 6914 from any other chapter.

Therefore, any non-originating components of the ceramic hotplate must come from a chapter
other than chapter 69, HTSUS.

     In the 1st manufacturing run, the non-originating components are the alumina silicate
filler, ceramic heating core (silica block) and ceramic decorative top.  The ceramic heating core
and ceramic decorative top are classified in Chapter 69, HTSUS, therefore, a change in tariff
classification does not occur.  The ceramic hotplate manufactured using the components described
in the 1st manufacturing run do not meet the tariff shift requirement of General Note 12(t)/69,
HTSUS, and therefore, are not considered "originating goods" pursuant to General Note
12(b)(ii)(A), HTSUS.

     In the 2nd manufacturing run, the only non-originating component is the alumina silicate
filler.  You described the alumina silicate as fine particle sand known as microspheres based on
aluminum silicate.  Depending upon its exact composition the alumina silicate is classifiable under
either chapter 25 or 26, HTSUS.  The non-originating alumina silicate has met the tariff shift
requirement of General Note 12(t)/69, HTSUS, and, therefore the ceramic hotplate in the 2nd
manufacturing run is considered an "originating good" pursuant to General Note 12(b)(ii)(A),
HTSUS.

III. Country of Origin and Marking

     The marking statute, section 304 of the Tariff Act of 1930, as amended (19 U.S.C. 1304),
provides that, unless excepted, every article of foreign origin (or its container) imported into the
United States shall be marked in a conspicuous place as legibly, indelibly, and permanently as the
nature of the article (or its container) will permit, in such a manner as to indicate to the ultimate
purchaser in the United States the English name of the country of origin of the article.  Part 134,
Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements
and exceptions of 19 U.S.C. 1304.

     The country of origin marking requirements for a "good of a NAFTA country" are also
determined in accordance with Annex 311 of the NAFTA, as implemented by section 207 of the
North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057)
(December 8, 1993) and the interim amendments to the Customs Regulations published as T.D.
94-4 (59 Fed. Reg. 109, January 3, 1994) with corrections (59 Fed. Reg. 5082, February 3, 1994)
and T.D. 94-1 (59 Fed. Reg. 69460, December 30, 1993).  These interim amendments took effect
on January 1, 1994, to coincide with the effective date of the NAFTA.  The Marking Rules used
for determining whether a good is a good of a NAFTA country are contained in T.D. 94-4
(adding a new Part 102, Customs Regulations).  The marking requirements of these goods are set
forth in T.D. 94-1 (interim amendments to various provisions of Part 134, Customs Regulations).

     Section 134.1(b) of the interim regulations, defines "country of origin" as:

     the country of manufacture, production, or growth of any article of foreign origin entering
     the U.S.  Further work or material added to an article in another country must effect a
     substantial transformation in order to render such other country the "country of origin";
     however, for a good of a NAFTA country, the NAFTA Marking Rules will determine the
     country of origin (emphasis added).

     Section 134.1(j) of the interim regulations, provides that the "NAFTA Marking Rules" are
the rules promulgated for purposes of determining whether a good is a good of a NAFTA
country. Section 134.1(g) of the interim regulations, defines a "good of a NAFTA country" as an
article for which the country of origin is Canada, Mexico or the United States as determined
under the NAFTA Marking Rules.  Section 134.45(a)(2) of the interim regulations, provides that
"a good of a NAFTA country may be marked with the name of the country of origin in English,
French, or Spanish."    

     Part 102 of the interim regulations, sets forth the "NAFTA Marking Rules" for purposes
of determining whether a good is a good of a NAFTA country for marking purposes. Section
102.11 of the interim regulations, sets forth the required hierarchy for determining country of
origin for marking purposes.  Section 102.11(a) of the interim regulations states that "[t]he
country of origin of a good is the country in which:

     (1)  The good is wholly obtained or produced;
     (2)  The good is produced exclusively from domestic materials; or
     (3)  Each foreign material incorporated in that good undergoes an applicable change in
          tariff classification set out in section 102.20 and satisfies any other applicable
          requirements of that section, and all other requirements of these rules are
          satisfied." 

     In this case, the applicable rule is section 102.11(a)(3) of the interim regulations.  "Foreign
Material" is defined in section 102.1(e) of the interim regulations as "a material whose country of
origin as determined under these rules is not the same country as the country in which the good is
produced."   In order to determine whether Mexico is the country of origin, we must look at those
materials whose country of origin is other than Mexico.  Therefore, in the 1st manufacturing run
all the materials are considered to be foreign material.  However, the foreign materials in the 2nd
manufacturing run are the alumina silicate, synthetic urethane binder and ferrous oxide dye.

     As the ceramic hotplate is classified under subheading 6912.00.48, HTSUS, the change in
tariff classification must be made in accordance with section 102.20(m), Section XIII: Chapters
68 through 70, 6901-6914 of the interim regulations, which states that:

     A change to heading 6901 through 6914 from any other chapter.

Therefore, each foreign material incorporated in the ceramic hotplate must come from a chapter
other than chapter 69, HTSUS.  

     In the 2nd manufacturing run a change in tariff classification pursuant to section
102.20(m), Section XIII: Chapters 68 through 70, 6901-6914 of the interim regulations, does
take place.  The foreign components are the alumina silicate which is classifiable depending on the
actual composition in either chapter 25 or 26, HTSUS, the synthetic urethane binder which is
classifiable in chapter 39, HTSUS, and the ferrous oxide dye which is classifiable in chapter 28,
HTSUS.  Therefore, pursuant to section 102.20(m), Section XIII: Chapters 68 through 70, 6901-6914 of the interim regulations, the country of origin of the ceramic hotplate in the 2nd
manufacturing run is Mexico.

     However, in the 1st manufacturing run, a change in the tariff classification does not take
place for the foreign ceramic heating core and ceramic decorative top.  As stated, both of these
foreign components are classified in chapter 69, HTSUS.  In the 1st manufacturing run, a change
in tariff classification does not occur pursuant to section 102.20(m), Section XIII: Chapters 68
through 70, 6901-6914 of the interim regulations.  Therefore, country of origin cannot be
determined under section 102.11(a) of the interim regulations.

     Section 102.11(b) of the interim regulations states that:

     Except for a good that is specifically described in the Harmonized System as a set, or is
     classified as a set pursuant to General Rule of Interpretation 2, where the country or origin
     cannot be determined under paragraph (a), the country of origin of the good:

     (1)  Is the country or countries of origin of the single material that imparts the essential
          character of the good...(emphasis added).

     When determining the essential character of a good under section 102.11 of the interim
regulations, section 102.18(b) of the interim regulations provides that only domestic and foreign
materials that are classified in a tariff provision from which a change is not allowed i.e., heating
core and decorative top, shall be taken into consideration and that in deciding among these
materials consideration is given to various factors, including the nature of the material or
component, bulk, quantity, weight, value, role of a constituent material in relation to the use of
the goods.  Based on these factors, we find that the ceramic heating core and ceramic decorative
top contribute equally to the function of the hotplate.  Both the ceramic heating core and the
ceramic decorative top hold and generate the heat necessary to keep a serving dish warm. 
Therefore, we conclude that no single material imparts the essential character to the ceramic
hotplate.

     Since we are unable to determine the country of origin of the 1st manufacturing run
ceramic hotplate pursuant to section 102.11(b)(1) of the interim regulations, we proceed to
section 102.11(c) of the interim regulations.  Section 102.11(c) is inapplicable in this situation as 
the ceramic hotplate is not classified as a set, mixture or composite good pursuant to GRI 3,
HTSUS.  Therefore, we proceed to section 102.11(d) of the interim regulations which states that:

     Where the country of origin of a good cannot be determined under paragraphs (a) through
     (c), the country of origin of the good is:

     (1)  The last country in which the good underwent production, other than by simple
          assembly or minor processing....

     In Mexico, the foreign materials, aluminum silicate, synthetic urethane and ferrous oxide
are manufactured into an inert binder which is molded around the ceramic heating core and
decorative top.  The molded form produced in Mexico from the inert binder which is classifiable
as other articles of stone or other mineral substances under heading 6815, HTSUS, is a domestic
material.  See, section 102.20(m), Section XIII: Chapters 68 through 70, 6815 of the interim
regulations.  Because not all of the parts of the ceramic hotplate in the 1st manufacturing run are
foreign , its production in Mexico did not result from a "simple assembly" and it exceeded "minor
processing."  See, sections 102.1(n) and (o) of the interim regulations.  Therefore, pursuant to
section 102.11(d)(1) of the interim regulations, the country of origin of the 1st manufacturing run
ceramic hotplate is also Mexico.

     Your proposed country of origin label is:

     Niche Marketing, Inc.   622-D Guilford College Road   Greensboro, NC 27409
     Assembled under License In Mexico  Product of North America.

"Product of North America" is an unacceptable marking for the ceramic hotplate.  The label must
state "Product of Mexico" or "Made in Mexico", or other similar wording. 

HOLDING:

     The ceramic hotplate is classified under subheading 6912.00.48, HTSUS, as other ceramic
tableware, kitchenware, other household articles and toilet articles, other than of porcelain or
china.  NY 898114 is affirmed.

     Based on the information presented the ceramic hotplate in the 1st manufacturing run is
not considered an "originating good" pursuant to General Note 12(b)(ii)(A), HTSUS.  However,
the ceramic hotplate in the 2nd manufacturing run is considered an "originating good" pursuant to
General Note 12(b)(ii)(A), HTSUS, provided all other applicable requirements are met.

     Pursuant to section 102.11 of the interim regulations, the ceramic hotplate in the 1st and
2nd manufacturing runs are considered to be products of Mexico for purposes of country of
origin marking.

                              Sincerely,


                              John Durant, Director
                              Commercial Rulings Division