CLA-2 OT:RR:CTF:TCM H061205 JRB
Eloise Hoover
Senior Manager
Starbucks Coffee Company
2401 Utah Avenue South
S-Tax
Seattle, Washington 98134
RE: Tariff classification of a tea infuser and glass tumbler; GRI 3(b) set
Dear Ms. Hoover:
This is in response to your e-ruling request made on March 5, 2009, to U.S. Customs and Border Protection (CBP) National Commodity Specialist Division in New York for a binding ruling on the tariff classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of a bodum® New Yo-Yo Set that consists of a stainless steel tea infuser and a glass tumbler that are imported together for retail sale. In addition to your initial ruling request, you also submitted further information by letter on April 6, 2009. Your ruling request was forwarded to this office for a response.
FACTS:
The merchandise that is the subject of this ruling consists of a mouth blown double walled glass tumbler that is approximately five inches in height. The glass tumbler is made of borosilicate glass, which makes it resistant to thermal shock. The glass is not processed in any further manner to add additional strength. The glass tumbler is intended to hold hot water that is heated in a separate container. Also, the glass tumbler does not have any handles or a cover. Once hot water is placed into the glass tumbler, a stainless steel tea infuser, which is a perforated, round, stainless steel basket that is approximately three inches tall, is lowered into the tumbler. The stainless steel
infuser overhangs and rests on top of the glass tumbler. The stainless steel infuser allows for loose tea leaves to be placed into the basket to brew hot tea. A stainless steel drip tray that fits on top of the tea infuser is included. The tray retains the heat of the water. Together the infuser and tray act as a lid to the glass. After brewing the tea, the infuser and drip tray are removed and the consumer can drink the tea directly from the glass tumbler.
The metal tea infuser and the glass tumbler are packaged together for retail sale in a cardboard box and labeled as the bodum® New Yo-Yo Set, Tea Cup Infuser with Double Wall Glass. According to the cost data that you provided, the stainless steel tea infuser accounts for seventy percent of the cost of the product.
ISSUE:
What is the proper tariff classification under the HTSUS of the bodum® New Yo-Yo Set?
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.
The HTSUS provisions under consideration in this case 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):
7323 Table, kitchen or other household articles and parts thereof, of iron or steel; iron or steel wool; pot scourers and scouring or polishing pads, gloves and the like, of iron or steel:
The Harmonized Commodity Description and Coding System Explanatory Notes (EN’s) constitute the official interpretation of the Harmonized System at the international level. 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. CBP believes the EN’s should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
Heading 7013, HTSUS, provides for the classification of glassware of a kind used in the kitchen. The EN to 70.13 notes that the heading includes drinking glasses and goblets. Based on this language, the glass tumbler that is being imported is described in heading 7013, HTSUS, because it is a drinking glass.
Heading 7323, HTSUS, provides for the classification of tableware made of iron or steel. In particular EN 73.23, provides that tea-strainers are classifiable in this heading. As such, heading 7323, HTSUS, describes the metal tea infuser and tray that is being imported with the glass tumbler because it is a metal tea strainer.
Since no heading of the HTSUS completely describes both the glass tumbler and the tea infuser, and as noted above the goods are prima facie classifiable in two or more headings, classification must fall to GRI 3. In particular, classification by application of GRI 3(b) should be examined.
GRI 3(b) provides:
3. When, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:
(b) 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.
The relevant ENs for GRI 3(b) provide:
(VIII) The 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.
(X) For the purposes of this Rule, the term “goods put 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. Therefore, for example, six fondue forks cannot be regarded as a set within the meaning of this Rule;
(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 repackaging (e.g., in boxes or cases or on boards).
GRI 3(b) provides for the classification of goods put up in retail sets. Applying the definition of the phrase “goods put up as sets for retail sale” provided in EN (X) to GRI 3(b), the subject merchandise meets the first requirement because the product consists of two or more goods, which are prima facie classifiable in two or more headings of the HTSUS. In addition, the subject merchandise meets the second requirement because the tumbler and the tea infuser are put up together to carryout a specific activity. In this case, the goods are put up together to make and consume tea. Finally, the goods are put up in a manner suitable for sale without repackaging because the goods are packaged into a small cardboard box which is suitable for retail sale. Therefore, the tea infuser and glass tumbler can qualify as a set for purposes of GRI 3(b).
Since the subject merchandise is considered a set, GRI 3(b) requires that classification be based on the product that provides the set with its essential character. As noted above, EN (VIII) to GRI 3(b) provides that when performing an essential character analysis the factors that should be considered are the bulk, quantity, weight or value, or the role of a constituent material in relation to the use of the goods. There have been several court decisions on "essential character" for purposes of classification under GRI 3(b). See, Conair Corp. v. United States, 29 C.I.T. 888 (2005); Structural Industries v. United States, 360 F. Supp. 2d 1330, 1337-1338 (Ct. Int’l Trade 2005); and Home Depot USA, Inc. v. United States, 427 F. Supp. 2d 1278, 1295-1356 (Ct. Int’l Trade 2006), aff’d 491 F.3d 1334 (Fed. Cir. 2007). “[E]ssential character is that which is indispensable to the structure, core or condition of the article, i.e., what it is.” Home Depot USA, Inc. v. United States, 427 F. Supp. 2d at 1293 quoting A.N. Deringer, Inc. v. United States, 66 Cust. Ct. 378, 383 (1971). In particular in Home Depot USA, Inc. v. United States, the court stated “[a]n essential character inquiry requires a fact intensive analysis.” 427 F. Supp. 2d 1278, 1284 (Ct. Int’l Trade 2006). Therefore, a case-by-case determination on essential character is warranted in this situation.
Applying the essential character analysis to the present case, the first factor to consider is what makes up the bulk of the set. With respect to this factor, we find that the two products are about the same size. As a result, this factor is not helpful in determining the essential character of the set.
The second factor considered is the quantity of the goods in the set. This factor is not helpful in determining the essential character of the good because there are only two goods that make up the set.
The third factor considered is the weight of the components. In this case, both the stainless steel tea infuser and the glass tumbler are approximately the same weight. Thus, this factor does not help in determining the essential character of the set.
The fourth factor considered is the value of the components. In this case, the stainless steel infuser accounts for an overwhelming majority of the value of the set because the infuser’s cost is seventy percent of the total value of the set. We believe that a consumer would not pay such a high price for a glass tumbler. Since the stainless steel tea infuser definitively drives the cost of this product, this factor is important in determining the essential character of the set.
The fifth factor considered is the role of the constituent material in relation to the use of the goods. In this case, the tea infuser plays the most important role in the use of the goods. As noted above, this set is intended for brewing and consuming tea. The tea infuser is what plays the most important role in that activity because it is the component that brews the tea that is then consumed. Without the infuser, the product is simply a double walled drinking glass. The addition of the stainless steel infuser turns the tumbler and the infuser into a set that is suitable for brewing and consuming tea. In addition, the stainless steel infuser acts as a cover to retain the heat of the tea during and after brewing. The user may remove the tea leaves from the stainless steel infuser and then use the stainless steel infuser as a cover to retain the heat of the tea since the glass tumbler does not have any cover to retain the heat of the tea while it is being consumed. Finally, the infuser is the item that provides this item with its marketing name, the Tea Cup Infuser with Double Wall Glass. It is marketed as an infuser that comes with a double walled glass tumbler. Thus, the stainless steel infuser has a more important role in the set because without the infuser the product is simply a glass tumbler that could be used to consume a number of different beverages.
We find that the tea infuser is the component that provides the essential character of the set because the tea infuser plays a vital role in the brewing of tea and it accounts for a majority of the costs of the set. In addition, this ruling is distinguishable from two previous New York Ruling Letters (NY) L85069, dated June 17, 2005, and NY G89918, dated July 11, 2001, because these rulings dealt with different merchandise than the merchandise at issue in this case. In this case, the subject merchandise is a glass tumbler that is used to make and consume tea from the same glass product. However, in the two rulings cited above, the two products were teapots with stainless steel infusers. Teapots are used in brewing, storing, or serving tea, and in many cases as a decorative kitchen item. The teapots in these rulings all came with covers that could be used to maintain the warmth of the tea. The glass tumbler in this case does not have a cover requiring the consumer to immediately drink the warm tea. Teapots are also larger objects, which tips the bulk and weight components of an essential character analysis towards the glass container. A teapot also is likely to be more expensive than the glass tumbler in this case, which would further equalize the value factor. Finally, a teapot is generally marketed as a teapot. However, in this case the item at issue is being marketed as a tea cup infuser that comes with a double wall glass tumbler. Thus, classification of the bodum® New Yo-Yo Set in heading 7323, HTSUS, is appropriate because we believe that a consumer is purchasing this set for the stainless steel tea infuser. A consumer would not pay the price that will likely be charged for this product to simply buy a glass tumbler. The tea infuser is the component of the set that imparts the tea making ability to the set.
HOLDING:
By application of GRI 3(b), the subject merchandise is classifiable in heading 7323, HTSUS. In particular, it is classifiable in subheading 7323.93.00, HTSUS, which provides for “[t]able, kitchen or other household articles and parts thereof, of iron or steel; iron or steel wool; pot scourers and scouring or polishing pads, gloves and the like, of iron or steel: [o]ther: [o]f stainless steel…” The column one general rate of duty is 2% ad valorem.
Duty rates are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at http://www.usitc.gov/tata/hts/bychapter/index.htm.
A copy of this ruling letter should be attached to the entry documents filed at the time the goods are entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the CBP officer handling the transaction.
Sincerely,
Gail A. Hamill, Chief
Tariff Classification and Marking Branch