HQ 959745

July 20, 1998

CLA-2 RR:CR:GC 959745 JRS

CATEGORY: Classification

TARIFF NO.: 6911.10.10

Ms. Marilyn-Joy Cerny

Global Customs & Trade Specialists, Inc.

Milltown Office Park - Suite B-202

Route 22

Brewster, New York 10509

RE: Ceramic tableware, of porcelain or china, used in the

rental industry; heading 6911, ceramic household

tableware, of porcelain or china, versus ceramic hotel

and restaurant tableware and other non-household

tableware, of porcelain or china; HQ 082780; principal

use, class or kind; Carborundum factors

Dear Ms. Cerny:

This is in response to your letter dated May 22, 1996,

requesting a ruling on behalf of Seneca-Delco Corporation,

concerning the classification of ceramic tableware intended to

be used in the tableware rental industry. We have taken into

consideration additional information presented at the meeting

held on January 8, 1997, and your further submissions dated

January 16, May 15, and June 11, 1997, which present information

on a GSA institutional standard for white, restaurant-grade,

china dinnerware. We regret the delay in responding.

FACTS:

Seneca-Delco (hereinafter, SD) imports tableware designed

exclusively for institutional use and sold expressly and

exclusively to institutional buyers such as restaurants, hotels,

airlines, nursing homes and hospitals. SD plans to import

certain tableware designed especially for sale to rental

companies and private caterers, who will in turn rent the

tableware to individuals and others hosting parties at homes or

other private locations. This merchandise will be marketed and

sold at Rental Industry Trade Shows and will be priced based on

individual 5-piece settings, not individual pieces. SD claims

that the end users of rental chinaware are more concerned with

appearance than durability, and consequently, the chinaware is

thinner and lighter than institutional chinaware. SD will not

provide the \"non-chipping guarantee\" that it traditionally

offers for its institutional chinaware.

A sample of the plate to be imported from Poland was

substituted for the original prototype from Bangladesh (Ten

Strawberry Street). A comparison sample of the standard

commercial chinaware used in hotels, restaurants and other

institutions also was presented. The dinner plate at issue

measures 10 11/16 inches in diameter and weighs 531 grams (18.59

oz. or 1 lb. and 2.59 oz.). It is bright white in color with a

high-gloss glaze. The \"rim\" portion of the plate measures 1 and

11/16 inches in width and is a little over 1/16ths of an inch in

thickness. On the back of the plate, a label containing the

following words appear:

ZA ADY PORCELANY STO OWEJ

\"LUBIANA\" S.A.

POLAND

#2038

The chinaware will be imported in either plain white or

white with a single or double overglazed metal (i.e., gold,

silver or platinum) band(s), to be located either on the outside

rim of the plate or on both the outside and inside rims. No

center designs, crests, or logos will be used.

The subheadings under consideration are as follows:

6911 Tableware, kitchenware, other household articles

and toilet articles, of porcelain or china:

6911.10 Tableware and kitchenware:

6911.10.10 Hotel or restaurant ware and other

ware not household ware\...doz.pcs. 31%

ad valorem

Other:

Other:

Other:

6911.10.52 Cups valued over \$8 but

not over \$29 per dozen; \...

plates not over

22.9 cm in maximum di-

ameter and valued over

\$8.50 but not over \$31 per

dozen; plates over 22.9

but not over 27.9 cm in

maximum diameter and valued over \$ll.50

but not over \$41

per dozen; \... doz PCs. 8%

ad valorem

ISSUE:

Whether tableware used in the rental industry is classified

as tableware for hotel or restaurant and other non-household

ware, or as tableware for household ware.

LAW AND ANALYSIS:

Merchandise is classifiable under the Harmonized Tariff

Schedule of the United States (HTSUS) in accordance with the

General Rules of Interpretation (GRIs). GRI 1 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, and provided the headings or notes do not

require otherwise, according to GRIs 2 through 6. Chapter 69,

HTSUS, provides for ceramic products.

Heading 6911 covers all tableware, kitchenware, other

household articles and toilet articles, of porcelain or china.

Tableware and kitchenware is further subdivided into two

distinct categories under subheading 6911.10: (1) articles for

hotel or restaurant ware and other ware not household ware and

\(2\) household ware. The household ware category is further

subdivided by articles of bone chinaware and other than bone

chinaware, and further subdivided by those available in

specified sets and those that are not.

SD contends that the rental chinaware falls within the

class of goods principally used in the household and is

therefore classifiable under the tariff provisions covering

tableware \"other\" than hotel or restaurant ware.

When an article is classifiable according to the use of the

class or kind of goods to which it belongs, Additional U.S. Rule

of Interpretation 1(a), HTSUS, provides that: in the absence of

special language or context which otherwise requires\-- (a) a

tariff classification controlled by use (other than actual use)

is to be determined in accordance with the use in the United

States at, or immediately prior to, the date of importation, of

goods of that class or kind to which the imported goods belong,

and the controlling use is the principal use. In other words,

the article\'s principal use at the time of importation

determines whether it is classifiable within a particular class

or kind. In Lenox Collections v. United States, 20 CIT ,

Slip Op. 96-30 (Feb. 2, 1996), the Court in its analysis

referred to Additional U.S. Rule of Interpretation 1(a) and the

need to focus on the principal use of the class or kind of goods

to which an import belonged, not the principal use of a specific

import, citing Group Italglass U.S.A., Inc. v. United States, 17

CIT 1177, 1178, 839 F. Supp. 866, 867 (1993).

Headings 6911, 6912 and 6913, HTSUS, have been held to be

\"use\" provisions both by the courts and Customs. See Lenox

Collections v. United States, 19 CIT 345 (1995); HQ 084122; HQ

958999\. Because both subheadings 6911.11.10 and 6911.11.52,

HTSUS, are use provisions, Additional U.S. Rule of

Interpretation 1(a), HTSUS, applies. \"Principal use,\" for

purposes of Additional U.S. Rule of Interpretation 1(a), means

the use \"which exceeds any other single use of the article.\"

See U.S. International Trade Commission, Conversion of the

Tariff Schedules of the United States Annotated Into the

Nomenclature Structure of the Harmonized System: Submitting

Report at 34-35 (USITC Pub. No. 1400)(June 1983).

On a case-by-case basis, decisions under the Tariff

Schedules of the United States (TSUS) - the HTSUS predecessor

tariff - are deemed instructive in interpreting HTSUS

provisions, provided the nomenclature remains unchanged and no

dissimilar interpretation is required by the text of the HTSUS.

See H. Rep. No. 100-576, 100th Cong., 2d Sess. 548, 550 (1988),

a conference report to the Omnibus Trade & Competitiveness Act

of 1988, Pub. L. No. 100-418. The nomenclature of the TSUS and

the HTSUS are identical. Both provisions distinguish between

\"hotel or restaurant ware and other ware not household ware\" and

\"household\" ware. As the language of the two nomenclatures is

identical, and the issue is essentially the same, we must

consider HQ 082780, dated December 18, 1989, which was based on

the TSUS. The only difference between the TSUS and the HTSUS in

heading 6911 is the standard of use. \"Principal use\" replaced

the prior standard of \"chief use.\"

While Additional U.S. Rule of Interpretation 1(a) provides

general criteria for discerning the principal use of an article,

it does not provide specific criteria for individual tariff

provisions. However, the U.S. Court of International Trade

(CIT) has provided factors, which are indicative but not

conclusive, to apply when determining whether particular

merchandise falls within a class or kind. They include: general

physical characteristics, the expectation of the ultimate

purchaser, channels of trade, environment of sale (accompanying

accessories, manner of advertisement and display), use in the

same manner as merchandise which defines the class, economic

practicality of so using the import, and recognition in the

trade of this use. See, Kraft, Inc, v. U.S., USITR, 16 CIT 483,

(June 24, 1992)(hereinafter Kraft); G. Heilman Brewing Co. v.

U.S., USITR, 14 CIT 614 (Sept. 6, 1990); and U.S. v. Carborundum

Company, 63 CCPA 98, C.A.D. 1172, 536 F. 2d 373 (1976), cert.

denied, 429 U.S. 979; Lenox Collections v. United States, 20 CIT

, Slip Op. 96-30 (Feb. 2, 1996).

Generally speaking, commercial porcelain tableware (other

than household) consists of two basic groups. The first is the

traditionally thick and very heavy tableware used in

institutional food services and the second is the thinner, not

as heavy tableware used for finer or fancier dining. The \"fine

chinaware\" is used by restaurants, hotels and caterers who want

to offer their patrons fancier tableware.

The American Hotel China is made in three grades based on

wall thickness: Grade (1), Thick china,\' 5/16 to 3/8 inch

walls, is used for the more severely handled service, typically

at lunch counters and military messes; Grade (2), Hotel (rolled

edge) China,\' 5/32 to 1/4 inch walls, is the normal type for

hotel and restaurant service; and Grade (3), Medium-weight

china,\' less than 1/4 inch walls, is furnished for higher-class

eating places where the service is handled with reasonable care,

home usage, and also for numerous jars, trays, etc. in

hospitals. See Felix Singer & Sonja S. Singer, Industrial

Ceramics, Chemical Publishing Co., Inc., New York (1963) at p.

1096; see Rexford Newcomb, Jr., Ceramic Whitewares, Pitman

Publishing Corp., New York (1947) at pp. 227-230; see Arthur E.

Dodd & David Murfin, Dictionary of Ceramics, The Institute of

Materials (3rd ed., 1994) at p. 11.

As set forth in Industrial Ceramics (pps. 1089, 1096),

commercial chinaware is made from the highest grade of raw

materials (predominantly a mixture of kaolin, flint, feldspar

and ball clay), selected to give the inside body as white a

color as possible. It is very high in mechanical strength. The

ware is not translucent in the normal hotel-china thickness, but

it would be translucent if made as thin as other types of

tableware. It is fired to complete vitrification (very low

water absorption\--under 0 - 3%), then covered with a fairly

hard, resistant glaze. It has a high alumina content which

gives its characteristic high strength.

From the chapter on \"Ceramics in the Home\" in Industrial

Ceramics (pps. 1089, 1096), there is also a class of dinnerware

termed American Household China, which is a fine ware of very

high strength (mechanical shock resistance) and translucency,

but tending to cream instead of white. The body type is soft

porcelain and it is used as high-grade domestic tableware. It

uses the same raw materials (32% kaolin) as American Hotel China

except for whiting and dolomite, and like the American Hotel

China, has a low water absorption under 0 - 1%. Another class

of dinnerware, Semi-Vitreous China, is the commonest type of

lower priced tableware in the U.S. which is used for general

household use and contains 19% kaolin, and which has little to

no translucency, medium to high mechanical shock resistance, and

a higher water absorption of 4 - 10%. Id. at pp. 1089, 1095.

You have presented Federal Specification M-C-301L (June 21,

1976\) used by the military which sets forth the requirements for

chinaware specifically purchased for mess facilities. The GSA

standard, Commercial Item Description No. A-A-2585A (GSA June 1,

1993), covers \"white, restaurant-grade, china dinnerware\" and

establishes purchase requirements for performance, design, and

construction requirements for restaurant-grade chinaware. It

requires the article to pass several tests to be considered

hotel grade. These include impact strength, chipping resistance

and thermal shock as well as other requirements. Three samples

each of a dinner plate, dessert dish, cup, and saucer were

submitted to an independent laboratory for testing. The

chinaware failed the impact strength requirement. On the basis

of the lab report, you conclude that since the chinaware failed

the impact strength criteria used by GSA, it must not be

classified as hotel-grade but should be considered household

ware. We note that information on the other GSA requirements

listed on the GSA standard was not provided.

The test results show that the chinaware in issue does not

satisfy the impact and chipping resistance requirements

(Paragraphs 4.5.1 and 4.5.2) of the GSA standard. However, it

does not fall within the class of the traditional thick and

heavy institutional ware to which M-C-301L is applicable.

With regard to using a GSA standard to distinguish

hotel/restaurant ware from household ware, the GSA standard

applies to only chinaware of specific size and dimensions. The

GSA standard dimension is for a dinner plate, 9 inches plus 1/4

inch or minus 1/16 inch, in outside diameter, which is

considerably smaller than the 11 and 11/16 inches dinner plate

at issue; the GSA rim width is 1/2 inch minimum to 3/4 inch

maximum, which is much narrower than the 1 and 11/16 inch rim

width of the prototype; the GSA height is 1 inch, plus 1/8 inch

or minus 3/16 inch, while the prototype\'s height is less than 1

inch; the GSA bottom thickness is 1/8 inch minimum and the

prototype is lower at 1/16 inch. The GSA standard is not useful

because it requires specific dimensions for hotel grade ware,

i.e., if the ware does not meet the dimensional requirements it

will not be classified as hotel-grade. The GSA standards are

also limited in usefulness because they are specifications for a

narrow line of merchandise, to wit, china tableware for mess

facilities.

It is the use of the chinaware and not the physical

composition that is critical for classification purposes. For

example, in HQ 082780, Customs held that if a plate was

emblazoned with a logo or crest of the hotel or restaurant, it

was found to be hotelware regardless of the fact that without

the logo, crest or symbol the chinaware would be classified as

household chinaware.

In HQ 082780, the Carborundum factors were applied to

determine whether chinaware containing a variety of patterns was

classifiable as hotel or restaurant ware (item 533.52, TSUS) or

household ware (item 533.64, TSUS). That ruling involved

imported fine household china intended for use by restaurants

and hotels in their \"finer dining areas.\" In addition, some of

the household chinaware was modified (e.g., hotel/restaurant

logos/names added to plate designs or patterns removed from the

center of the plate) for sale to restaurants. Customs held that

with the exception of the china containing hotel/restaurant

logos or names, which are properly classified in the class of

china used for hotels and restaurants, the patterned chinaware

sold to and used by restaurants and hotels fell within the class

of china \"chiefly used\" as household ware since the percentage

of sales and amount of use of household china by restaurants and

hotels did not exceed all other uses. On the facts presented,

HQ 082780 is correct but is distinguishable from the chinaware

at issue.

A review of the literature and pictures of the chinaware in

HQ 082780 reveals that of the 32 patterns, 12 were bone china

(clearly within the household class) and the 20 other patterns

of the \"fine dining\" chinaware were fully vitrified porcelain

and would be considered either \"hotel china\" or \"medium-weight\"

grade commercial china. The importer, Villeroy & Boch

(hereinafter V&B), was both a hotel/restaurant and household

supplier. V&B \"fine dining\" chinaware was stated to have more

sophisticated decoration, color varieties and body shapes than

typical institutional tableware and was oriented more towards

specialty dining than coffee-shop or banquet type operations.

The fine dining range of V&B\'s fully-vitrified porcelain

chinaware was also suitable for hotel and restaurant use due to

its use of body design and its \"hotel\" glaze (a durable, ivory-colored
glaze which is exceptionally hard and both scratch and

abrasion resistant). V&B stated in its \"Hotel and Restaurant

Division\" brochure that the main difference between its \"fine

dining\" tableware and its hotel ware was the fact that the cups

do not contain the alumina additive. In its line of hotel

pattern, banquet-weight tableware, the facts presented by V&B

were that the plates and cups are reinforced with fully 38.5%

alumina, which reduces chipping and breakage and improves the

heat-retaining qualities and, that the plates have reinforced,

rolled edges, glazed and polished feet to prevent abrasion and

minimize wear when stacking. The weight comparison between the

hotel patterns and the retail patterns given for two plate

patters was 1 lb. and 11 oz. (hotel) and 1 lb. and 1.5 to 5 oz.

(retail) and for cups was 7 to 8.5 oz. (hotel) and 5.5 oz. to 6

oz. (retail).

The chinaware at issue in this case differs from and is

distinguished from the tableware in HQ 082780 on principal use

and on the Carborundum factors. This chinaware belongs to the

\"medium-weight\" hotel china used for elegant dining. Due to

technological advances, commercial ceramic dinnerware need not

be bulky and lacking in style. Arguably, the differences may be

in appearance but not in use. Thus, we are of the opinion that

if the thickness of the chinaware is more than 1/4 inch, it is

hotel-grade provided that the other characteristics are

satisfied. If the thickness is less than 1/4 inch, it may be

hotel ware or household ware depending on its use.

As a general rule, an article\'s physical form will indicate

its principal use and thus to what class or kind it belongs.

Should, however, an exception arise so that an article\'s

physical form does not indicate to what class or kind it belongs

or its physical form indicates it belongs to more than one class

or kind, Customs considers the other enumerated principal use

criteria to determine to which class or kind the article

belongs, as household chinaware or institutional chinaware.

I. General Physical Characteristics

You contend that the subject chinaware falls within the

class of goods that is principally used in the household as that

in HQ 082780, contending that the following physical

characteristics support the position that the rental chinaware

is household chinaware and not institutional. However, we note

that \"medium-weight\" hotel china has also found an increasing

market for home use; for this purpose it is usually given more

elaborate decoration than is normal in restaurant use. See

Ceramics Whitewares at 228.

First, the chinaware in issue is lighter in weight than

traditional institutional chinaware. The white institutional

plate sample, \"Atlantic,\" weighs 1 lb., 8 oz. (686 grams) and is

9 and 5/8 inches in diameter. It is the \"classic\" institutional

plate found in a typical cafeteria or mess hall setting. To

demonstrate that some household chinaware is heavier than the

instant prototype, you presented two samples of household

chinaware with very similar design features (e.g., plain white

design with profile) obtained at a retail outlet and a wholesale

company that supplies household articles to retail outlets which

were heavier than the prototype: the \"retail\" plates were 741

grams (25.94 oz. or 1 lb. and 9.93 oz.) and 607 grams (21.24 oz.

or 1 lb. and 5.24 oz.) in weight, respectively. You conclude

that the differences between the two types of dinnerware warrant

that the less bulkier goods are essentially for household use.

The two examples of heavier \"household\" plates submitted,

however, demonstrate that the line between household and

hotel/restaurant ware is not as distinct as in the past; there

is much overlap regarding physical characteristics. Also, the

physical characteristics of household china vary widely. The

two samples of the \"heavier\" retail dinnerware were packed in

cartons (i.e., 20-piece set, containing four 5-piece place

settings) ready for sale at retail. The fine dining chinaware

used in hotels in HQ 082780 is indistinguishable from most

household china in physical characteristics and design. Based

on the weight comparison in HQ 082780, the prototype plate falls

within the household class at 1 lb. and 2.59 oz.

Second, the subject chinaware is far too fragile to

withstand the repetitive use of institutions largely due to its

ornate shapes, curled edges and thin rims. Based upon the

\"hotel/restaurant\" information in HQ 082780, the \"fine dining\"

china for hotels has a variety of design shapes (e.g.,

Octavi/Mohn; Audun; Louis XIV; Castello; Facette) that could be

characterized as ornate, but not necessarily too fragile or

delicate for hotel use. The importer in HQ 082780 stated in its

\"Hotel and Restaurant Division\" brochure that the main

difference between its \"fine dining\" tableware and its hotel

ware was the fact that the cups do not contain the alumina

additive. We interpret that statement to mean that the cups may

not be as durable is attributable to its composition, but not

necessarily to its style/design. This argument does not take

into account the \"medium-weight\" hotel china\'s characteristics.

Third, due to the fragile and delicate nature of the rental

chinaware, the importer will not offer its \"Non-chipping

Guarantee\" that is standard for its institutional chinaware (in

which it agrees to replace institutional chinaware that is

broken or chipped within one year of purchase). This factor

merely demonstrates that the prototype plate is not as heavy as

traditional institutional chinaware and does not have the

typical (i.e., curled edge) plate design of traditional

institutional ware.

Fourth, rental chinaware is more costly than institutional

ware due to design costs and expenses relating to higher quality

control standards. Rental companies can accept high breakage

and chipping rates for the rental chinaware because they can

recover the cost of the rental chinaware after very few uses.

The price of the china is not a conclusive factor because the

medium-weight hotel china is more expensive than the typical

institutional \"thick china.\"

Fifth, only a limited number of sizes are available in the

rental chinaware, that is, only 3 to 4 plate sizes are available

whereas generally 8 to 9 plate sizes are available with

traditional institutional chinaware. In HQ 082780 there were

typically 6 to 7 plate sizes for \"hotel china\" and 3 to 4 plate

sizes for \"medium-weight\" hotel china. The number of plate

sizes does not conclusively establish whether the chinaware

falls in household or in the \"medium-weight\" commercial china

group.

You assert that brighter metals will be used to create

center and outer band designs on the rental chinaware, and that

\"shinier\" gold bands are less durable than the burnished gold

used on standard institutional ware where durability is more

important than appearance. Again, this factor is not

dispositive because it goes to the use of the chinaware where

the expectation of the ultimate purchaser (e.g., caterer) is

that the service will be handled with reasonable care versus the

severely handled chinaware of army messes and the like. From

the V&B \"Hotel and Restaurant Division\" brochure on \"hotel-weight\"
china (p. 3) in HQ 082780, there was an option to have

some semi-custom patterns decorated with gold lines on the rims

which would not be underglazed. This practice demonstrates the

market\'s aim of having hotel-weight and medium-weight china look

more elegant for the gourmet dining rooms.

Since the plate\'s physical form does not conclusively

indicate to which class it principally belongs, we will consider

the other court-enumerated Carborundum factors.

II\. Expectation of the ultimate purchaser

You contend that the rental companies purchasing this

chinaware expect it to be of \"household\" quality because they in

turn will market it to individuals (e.g., homeowners) for at-home
parties. It is clear that the ultimate purchaser is either

a rental company or a caterer, both commercial entities.

Contrary to your assertions, the end-users of this chinaware

(i.e., the customers of the caterer) are not the ultimate

purchasers of the china because they are buying a service and

not the chinaware.

With a traditional institutional ware purchaser, the

expectation is that the restaurant china will provide a

significant measure of durability which will enable continuous

use without purchasing replacements. You suggest that the

rental companies can recoup the cost of purchasing rental

chinaware, which is more expensive than \"institutional\" ware,

with only three rentals. This statement supports the contention

that the ultimate purchaser is a commercial entity which is

willing to pay more money for finer looking chinaware than the

traditional mess-hall institutional ware. In other words, it is

a necessary cost of doing business in the rental industry.

Also, we understand that the expectation of the caterer or

rental company will be that the chinaware will be handled in a

reasonable manner, as in \"high-class\" eating places utilizing

\"medium-weight\" china, and that the durability is not as great a

concern as is the eye-appealing quality of the chinaware with

its more elaborate shapes, thinner rims and patterns/styles.

The expectation of the caterer or rental company is to replicate

or take the place of the fine bone chinaware typically found in

the home, but with the durability of hotel china to attract the

consumer\'s business.

III\. Channels of Trade

The rental industry has trade shows, trade publications

and catalogues directed to commercial end users and not to the

household trade. SD notes that the suppliers of rental

chinaware will market the chinaware at rental industry trade

shows and that the only attendees at such trade shows are rental

companies and caterers. SD was an exhibitor at the 41st Annual

American Rental Association Convention & Rental Trade Show in

1997\.

SD notes that the institutional food service companies do

not participate in the rental industry\'s trade shows, as they

have separate trade shows. It is well-known that institutional

chinaware is offered for sale by independent sales

representatives to wholesale commercial food service firms who

neither offer nor sell chinaware to retailers.

Since the rental chinaware is not sold through the retail

environment but is marketed and sold at the rental industry

trade shows, this factor tends to suggest that the channel of

trade is commerical and not retail in nature. The fact that

well-known household chinaware retailers are exhibitors at the

rental industry trade shows does not convert the channel of

trade to retail. It is mere evidence of companies trying to

expand their market share by creating a niche.

IV\. Environment of Sale (accompanying accessories, manner of

advertisement and display)

SD states that the rental chinaware will be priced and sold

based upon individual 5-piece place settings, and not by

individual pieces or by the dozen, which is the standard method

that institutional chinaware is priced and sold.

This practice of pricing and selling based on place

settings is very similar to household chinaware, which

traditionally offers a dinner plate, salad/bread & butter plate,

soup/cereal bowl, cup and saucer as the 5-piece place settings.

In addition, SD asserts that rental companies will make

available other home party accessory items with the chinaware,

such as tents, tables, chairs, expensive linens and high-end

flatware.

The \"medium-weight\" hotel china is indistinguishable from

the household china in terms of selling practices regarding

place settings. In HQ 082780, there typically was a choice of 3

to 4 flat plate sizes (ranging in size from 6 1/4 inch or 6 3/4

inch to 10 1/4 inch to 10 1/2 inch) in each of the fine

porcelain chinaware and bone chinaware that was used in hotels

and restaurants, which was found to be household chinaware.

Likewise, accompanying accessory items to many of the patterned

place settings for the fine dining chinaware in HQ 082780 were

extensive, including many of the following in each pattern line:

egg cups, cream soup cup and saucer, coffeepot (48 oz. \[6

persons\] and 28 oz. \[2 persons\]), teapot (38 oz. \[6 persons\]),

covered sugar, creamer, salt/pepper set, covered butter dish,

covered gravy boat, pickle dish and/or candlestick. Serving

pieces of a variety of sizes were also available. These

accessories are tailored to household use, and not table

service.

In contrast, the chinaware grouped in the \"hotel-weight\"

range in HQ 082780 had a narrower range of accessories tailored

to suit the individual. The specific pieces of \"hotel china\"

are designed to serve the individual rather than the family.

For example, the \"Cortina 2000 series,\" a Grade 2 \"hotel china,\"

encompasses accessories which have a smaller volume capacity

such as an 11 oz. coffeepot, a 10 and 1/2 oz. teapot, a 3 and

1/2 oz. creamer. The plates are available in 6 or 7 different

sizes (from 6 3/4 inch to 12 1/4 inch).

Although the pricing and selling of rental chinaware by

place setting arguably falls within the class of household

china, the manner of advertisement and display are

representative of commercial chinaware sales. The manner of

advertisement in both the institutional and rental industry is

geared to the industry and not to the general public. The trade

publications and catalogues in the institutional chinaware are

directed to wholesale commercial food service firms and

commercial end users. The chinaware is displayed via brochures

and at trade shows in place settings. Orders are made directly

through the suppliers to the manufacturers. The instant

chinaware is not in the retail market and it cannot be obtained

in a department store or other retail establishment whereby the

consumer could register for it. Thus, it falls outside the

class or kind principally used as household ware.

V. Usage in the same manner as merchandise which defines the

class

SD contends that since the chinaware is used at home

parties, it is within the class of household ware. We disagree.

As noted in the discussion of the \"expectation of the ultimate

purchaser,\" the commercial end-users expect to use the

chinaware, which attempts to replicate the look of the expensive

fine household bone china, with reasonable care, either at the

home or the banquet hall. The intended use will be the same as

that accorded the \"medium-weight\" hotel china used in the fancy

eating establishments which is manufactured to withstand the

rigors associated with commercial use. The rental chinaware

will be presumedly transported from location to location, and

the soiled chinaware set in crates for insertion into commercial

dishwashers. This usage will be commercial in nature, unlike

the delicate use accorded to household china.

VI\. Economic practicality of so using the import

See discussion in II. above.

VII\. Recognition in the trade of this use

SD contends that household chinaware suppliers are selling

their wares through the rental trade shows to take advantage of

this growing market. If household chinaware dealers who

typically market their chinaware directly to consumers or to the

household trade are also now marketing their chinaware to the

rental industry, this factor would suggest that commercial end

users are willing to purchase retail chinaware. However, the

general public is not invited to these industry trade shows.

Based upon the chinaware in HQ 082780, the evidence

presented showed that the sales of the chinaware to

hotels/restaurants did not exceed 51%, and as such, \"chief use\"

was not met and the chinaware was thus classified as household

china. In this case, the relevant standard is \"principal use,\"

a different standard than the prior tariff\'s \"chief use\" as

defined earlier. From the evidence presented in the \"channels

of trade\" discussion above, sales apparently are targeted to

commercial entities, i.e., rental companies and caterers. As

such, we find that there is a recognition in the trade that this

class or kind of merchandise is principally used commercially,

for other than household use.

Upon weighing all the Carborundum factors, we must conclude

that the majority of the factors support principal use in the

class of commercial chinaware. There exists an overlap between

\"medium-weight\" hotel china for both household and commercial

use on the current market. The distinction between the

household and non-household ware is based upon the usage of the

tableware rather than the actual physical composition. Although

there is no tariff definition for hotel china and other non-household
ware, it is the use that is controlling irrespective

of the various physical properties. The chinaware at issue is

of the class or kind principally used for other than household

use. According, the chinaware is properly described by

subheading 6911.10.10, HTSUS.

HOLDING:

Tableware used in the rental industry is properly

classified as tableware for hotel or restaurant and other non-household
ware under subheading 6911.10.10, HTSUS.

Sincerely,

John Durant, Director

Commercial Rulings Division