CLA-2 RR:CR:GC 960653 HMC
David M. Murphy, Esq.
Grunfeld, Desiderio,
Lebowitz & Silverman, LLP
245 Park Avenue
33rd Floor
New York, NY 10167-3397
RE: 9-Piece Buffet Cake Set; Subheading 7323.99.10; GRI 3(b);
Explanatory Notes (VIII) and (X) to GRI 3(b); Explanatory Note
70.13; Other Glassware of the Kind Used for Table, Office, Indoor
Decoration or Similar Purposes; Other Table, Kitchen or Other
Household Articles of Iron or Steel; HQ 960620, 956048 and
956810.
Dear Mr. Murphy:
This is in response to your letter to the Customs National
Commodity Specialist Division, New York, dated May 23, 1997, on
behalf of Syratech Corporation, regarding the tariff
classification of the "International Silver Company's" "9-Piece
Buffet Cake Set," under the Harmonized Tariff Schedule of the
United States (HTSUS). Your letter, together with a sample, was
forwarded to this office for a reply. We regret the delay.
FACTS:
The sample submitted is a 9-piece buffet cake serving set,
item 99110961, consisting of a large glass cake plate, 12 3/4
inches in diameter, six small serving plates, 7 1/4 inches in
diameter, a silver-plated trowel, 11 1/4 inches in length and a
silver-plated steel rack or stand, 7 1/4 inches in height. The
rack is made of rod bent in the shape of a circle for holding the
items of the set. It has two levels with the large plate placed
on top of the rack and the serving plates placed on the bottom.
The articles are packaged together in a specially printed box.
The box depicts the rack holding the large plate on top with two
slices of cake next to a serving trowel.
The provisions under consideration are as follows:
7013 Glassware of a kind used for table, kitchen,
toilet, office, indoor decoration or similar
purposes (other than that of heading 7010 or
7018):
Glassware of a kind used for table
(other than drinking glasses) or kitchen
purposes other than that of glass-ceramics:
7013.39 Other:
7013.39.20 Valued not over $3 each... 27%
* * * *
7323 Table, kitchen or other household articles
and parts thereof, or iron or steel; iron or
steel wool; pot scourers and scouring or
polishing pads, gloves and the like, of iron
or steel:
Other:
7323.99 Other:
Coated or plated with precious
metal:
7323.99.10 Coated or plated
with
silver.... .8%
ISSUE:
Whether the 9-piece buffet cake set is classifiable as a set
under subheading 7013.39.20, HTSUS.
LAW AND ANALYSIS:
Merchandise is classifiable under the 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.
The silver-plated rack and trowel are described by heading
7323, HTSUS, and the glass plates are described by heading 7013,
HTSUS. You contend that the merchandise is appropriately
classified under subheading 7323.99.10, HTSUS, on the premise
that the items constitute a set and that the essential character
of the set is imparted by the silver-plated rack and trowel.
GRI 3(a) states that when, by application of rule 2(b) or
for any other reason, goods are, prima facie, classifiable under
two or more headings, the heading which provides the most
specific description shall be preferred to headings providing a
more general description. However, when two or more headings
each refer to part only of the materials or substances contained
in mixed or composite goods or to part only of the items in a set
put up for retail sale, those headings are to be regarded as
equally specific in relation to those goods, even if one of them
gives a more complete or precise description of the goods.
GRI 3(b) states that mixtures, 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. Since the
subject goods consist of various items sold together as a set, we
must first determine if for tariff purposes it is a set put up
for retail sale as defined by GRI 3(b).
The Harmonized Commodity Description And Coding System
Explanatory Notes (EN's) constitute the official interpretation
of the Harmonized System. While not legally binding on the
contracting parties, and therefore not dispositive, the EN's
provide a commentary on the scope of each heading of the
Harmonized System and are thus useful in ascertaining the
classification of merchandise under the System. Customs believes
the EN's should always be consulted. See T.D. 89-80, 54 Fed.
Reg. 35127, 35128 (Aug. 23, 1989).
Explanatory Note (X) to GRI 3(b), at page 5, states that the
term "goods put up in sets for retail sale" shall be taken to
mean goods which:
(a) consist of at least two different articles which are,
prima facie, classifiable in different headings.
(b) consist of products or articles put up together to meet
a particular need or carry out a specific activity; and
(c) are put up in a manner suitable for sale directly to
users without repacking (e.g., in boxes or cases or on
boards).
In this instance, we agree with your contention that the
cake serving set qualifies as a set of GRI 3(b). The articles
are, prima facie, classifiable in different headings. Also, the
glass plates, the rack and the trowel are designed to be used
together to carry out the specific activity of serving cake; and,
they are put up in a manner suitable for sale directly to users
without repacking. Accordingly, we must determine whether the
steel silver-plated items or the glass plates impart the
essential character to the sets.
In general, essential character has been construed to mean
that attribute which strongly marks or serves to distinguish what
an article is; that which is indispensable to the structure, core
or condition of the article. In addition, EN (VIII) to GRI 3(b),
at page 4, states that the factor which help determine 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.
You contend that the essential character is imparted by the
silver-plated articles because the set is designed, marketed and
sold for its silver-plating. You further argue that the
overwhelming visual effect of the silver-plated articles conveys
the core reason for the consumer's purchase and use of this set.
We disagree with your contention that the silver-plated articles
impart the essential character to the subject set.
We believe that, in this instance, the glass plates impart
the essential character to the set. We note that the large glass
plate has a higher value than the rack and the server. Also, it
is this plate that would be used to hold a cake and, together
with the serving plates, perform the main function of serving
cake. We thus believe that the glass plates are the most
visually, structurally and functionally significant components
of the set, the racks and the servers simply assisting in the
serving function. See Better Home Plastics Corp. v. United
States, CIT Slip Op. 96-35 (1996), affirmed CAFC Appeal No. 96-1322 (1997), which involved the classification of shower curtain
sets, consisting of an outer textile curtain, inner plastic
magnetic liner, and plastic hooks. The Court looked to the role
of the constituent material in relation to the use of the goods
and found that, even though the relative value of the textile
curtain was greater than that of the plastic liner and the
textile curtain also served protective, privacy and decorative
functions, because the plastic liner performed the indispensable
function of keeping water inside the shower, the plastic liner
imparted the essential character upon the set. See also Mita
Copystar America, Inc. v. United States, CIT Slip Op. 97-73
(1997), and Vista International Packaging Co. v. United States,
19 CIT 868 (1995), in which the court also looked to the role of
the constituent material in relation to the use of the goods to
determine essential character. Based on GRI 3(b), we find that
the 9-piece buffet cake set is classifiable as if consisting only
of the glass plates. See HQ 960620, dated August 26, 1997, HQ
956048, dated July 7, 1994 and HQ 956810, dated November 28,
1994, for a similar finding.
As you suggested, the glass plates are described by heading
7013, HTSUS, which provides for glassware of the kind used for
table, kitchen, toilet, office, indoor decoration or similar
purposes. EN 70.13 states that heading 7013, HTSUS, covers table
or kitchen glassware. In this instance, we believe that the
buffet cake serving set will be principally used for table or
kitchen purposes. See Additional U.S. Rule of Interpretation
1(a).
HOLDING:
Under the authority of GRI 3(b), the "9-Piece Buffet Cake
Set," item 99110961, is properly classified under subheading
7013.39.20, HTSUS, as "glassware of a kind used for table (other
than drinking glasses) or kitchen purposes other than of glass-ceramics: Other: Other: Valued not over $3 each." The rate of
duty is 27% ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division