HQ 950833: Internal Advice 58/91; "Siestaware" Stoneware Dinner Set; GRI 3(b); EN 3(b)(VIII); GRI 3(c); GRI 6; HQ 083362; HQ 081217

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 950833
                        January 17, 1992


CLA-2 CO:R:C:M 950833 DWS

CATEGORY: Classification

TARIFF NO.: 6912.00.48

Ms. Jean F. McGuire
Area Director, New Yort Seaport
6 World Trade Center
New York, NY 10048-0945

RE:  Internal Advice 58/91; "Siestaware" Stoneware Dinner Set;
     GRI 3(b); EN 3(b)(VIII); GRI 3(c); GRI 6; HQ 083362; 
     HQ 081217

Dear Ms. McGuire:

     This is in response to your letter of August 1, 1991,
requesting internal advice concerning the tariff classification
of a sixteen piece "Siestaware" stoneware dinner set under the
Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

     The subject merchandise consists of a "Siestaware" stoneware
dinner set.  It is comprised of sixteen pieces, including four
ten inch plates, four seven inch plates, four six inch bowls, and
four mugs.

ISSUE:

     What is the proper classification of the stoneware dinner
set under the HTSUS?

LAW AND ANALYSIS:

     Classification of merchandise under the HTSUS is in
accordance with the General Rules of Interpretation (GRI's),
taken in order.  GRI 1 provides that classification is determined
according to the terms of the headings and any relative section
or chapter notes.

     GRI 6 provides that:

     [f]or legal purposes, the classification of goods in the 
     subheadings of a heading shall be determined according
     to the terms of those subheadings and any related 
     subheading notes and, mutatis mutandi, to the above rules, 
     on the understanding that only subheadings at the same level
     are comparable.  For the purposes of this rule, the relative
     section, chapter and subchapter notes also apply, unless the
     context otherwise requires.

     All parties agree that the dinnerware is not "available in
specified sets".  Classification of the merchandise is provided
for as follows:

     1. Ten inch plates - Subheading 6912.00.45, HTSUS, which    
        provides for: "[p]lates over 22.9 but not over 27.9 cm
        in maximum diameter and valued over $8.50 per dozen."

     2. Seven inch plates - Subheading 6912.00.48, HTSUS, which
        provides for: "[t]ableware and kitchen ware: [o]ther:
        [o]ther: [o]ther: [o]ther."

     3. Six inch bowls - Subheading 6912.00.45, HTSUS, which 
        provides for: "[s]oups, oatmeals and cereals valued over
        $6 per dozen."

     4. Mugs - Subheading 6912.00.44, HTSUS, which provides for:
        "[m]ugs and other steins."

Classification will be determined by resort to GRI 3 inasmuch as
the merchandise is not classifiable according to the terms of any
particular heading.

     GRI 3(b) provides that:

     [m]ixtures, composite goods consisting of different
     materials or made up of different components, and goods
     put up in sets for retail sale, which cannot be classified
     by reference to 3(a), shall be classified as if they 
     consisted of the material or component which gives them
     their essential character, insofar as this criterion is
     applicable.

     Counsel for the internal advice applicant argues that the
essential character of the set is imparted by the ten inch plate. 
He claims that the "[ten] inch plate is clearly the most bulky
component of the set, and is noticeably larger than the other
pieces.  The [ten] inch plate is also the heaviest article in the
set, which is also being a function of its larger size.  In 
addition, the [ten] inch plate is functionally more important
than any other piece in the set, because it is an entre (sic)
dish which occupies the central position in relation to the rest
of the place setting.  Finally, the [ten] inch plate is by far
the most costly article in the set . . ."

     In understanding the language of the HTSUS, the Harmonized
Commodity Description and Coding System Explanatory Notes may be
utilized.  The Explanatory Notes, although not dispositive, are
to be used to determine the proper interpretation of the HTSUS. 
54 Fed. Reg. 35127, 35128 (August 23, 1989).  Explanatory Note
3(b)(VIII) (p. 4) provides that: 

     [t]he factor which determines essential character will vary
     as between different kinds of goods.  It may, for example,  
     be determined by the nature of the material or component,
     its bulk, quantity, weight or value, or by the role of a 
     constituent material in relation to the use of the goods.

     Counsel cites HQ 083362, dated July 21, 1989, and 
HQ 081217, dated May 17, 1989, in support of his position.  In HQ
083362, it was ruled that the essential character of a moulded
plastic picnic cooler, with special compartments and small
containers to preserve and carry food, was imparted by the
cooler.  The reasoning was that the cooler is the bulk of the
article and plays the main role of holding the other components
of the set and insulating any food stored in the container.

     In HQ 081217, it was determined that the essential character
of certain luggage sets was imparted by their larger outer
pieces.  The reasoning was that the outer piece creates the
initial selling impact, is of primary importance in selling the
set at retail, and by virtue of its size, plays a dominant role
in relation to the use of the pieces comprising the set.

     We find that the subject stoneware dinner set is
distinguishable from the luggage sets in HQ 081217, because the
pattern of the stoneware, not the size and bulk of the ten inch
dinner plate, creates the initial selling impact.  We also find
that the stoneware is distinguishable from the cooler in HQ
083362, because the ten inch plate is not the bulk of the dinner
set when grouped with the seven inch plate, the six inch bowl,
and the mug.  Also, there is an assumption that all the articles
in the set will be used at the same time.  That is not our
understanding of the use of this type of dinnerware.  A purchaser
of the set may use any one or a combination of the articles
contained within the set at one time.

     Based upon our finding that all the articles in the dinner
set are functionally equivalent, it is our position that the set
does not have an individual component which imparts an essential
character.  GRI 3(c) provides that:

     [w]hen goods cannot be classified by reference to 3(a) or   
     3(b), they shall be classified under the heading which
     occurs last in numerical order among those which equally
     merit consideration.

     Since all of the articles, taken separately, are
classifiable in heading 6912, HTSUS, the seven inch plate is
classifiable under the subheading which occurs last in numerical
order among the articles contained within the dinner set.  It is
classifiable under subheading 6912.00.48, HTSUS, which provides
for: "[t]ableware and kitchenware: [o]ther: [o]ther: [o]ther:
[o]ther."

HOLDING:

     The "Siestaware" stoneware dinner set is classifiable under
subheading 6912.00.48, HTSUS.  The general, column one rate of
duty is 11.5 percent ad valorem.

                           Sincerely,



                           John Durant, Director
                           Commercial Rulings Division