CLA-2 CO:R:C:G 083149 JMH
Richard G. Seley
Rudolph Miles & Sons, Inc.
Customhouse Brokers
4950 Gateway East
P.O. Box 144
El Paso, Texas 79942
RE: Champagne glasses and cake knife
Dear Mr. Seley:
Your letter of November 25, 1988, requesting a
classification ruling under the Harmonized Tariff Schedule of the
United States Annotated (HTSUSA) for the Love's Remembrance
champagne glasses and cake knife has been referred to this office
for a reply.
FACTS:
The merchandise in question are two champagne glasses and a
cake knife packed together for retail sale. The goods are
intended to be a gift for use at a wedding reception. The
glasses are for drinking champagne and the knife for cutting the
wedding cake.
The glasses, whose country of origin is Mexico, are less
than 24 percent lead monoxide and have a value of $0.40 each.
One glass is marked with the word "Bride" and the other is marked
with the word "Groom". White ribbons are tied around the stem of
each glass.
The knife, whose country of origin is Japan, has a fixed
blade made of base metal and a plastic handle. The knife is
marked with the words "Love's Remembrance."
The champagne glasses and cake knife are packed within U.S.
origin packaging.
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ISSUE:
Issue 1: Whether the champagne glasses and cake knife packed
together for retail sale are a "set" within the meaning of
General Rule of Interpretation 3(a) of the HTSUSA.
Issue 2: Whether U.S. origin packaging would be entitled to any
allowance under subheading 9801.00.10, HTSUSA, as "Products of
the United States when returned after having been exported,
without having been advanced in value or improved in condition by
any process of manufacture or other means while abroad..."
LAW AND ANALYSIS:
Issue 1:
The classification of goods under the HTSUSA is governed by
the General Rules of Interpretation (GRI's). GRI 1, HTSUSA,
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 according to the
following provisions." The "following provisions" includes GRI
3(a) and GRI 3(b), HTSUSA, which refer to articles in sets "for
retail sale..." GRI 3(a) provides that the heading which most
specifically describes the goods is preferred and headings for
goods in a set are to be considered equally specific. GRI 3(b)
states that:
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, as far as this
criterion is applicable.
The Explanatory Notes to the HTSUSA must be studied in
order to determine what is a "set" so to implement these rules,
The Explanatory Notes, although not dispositive, are to be looked
to for the proper interpretation of the HTSUSA. 54 Fed. Reg.
35127, 35128 (August 23, 1989). The Explanatory Note for Rule
3(b) gives a three part test for "goods put up in sets for retail
sale." Harmonized Commodity Description and Coding System
(HCDCS), Vol. 1, p. 4. The three step definition states:
For the purposes of this Rule, 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.
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(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). (emphasis added)
Since these three steps are listed in the conjunctive, all
three must be met. The cake knife is classifiable within heading
8211.91.50, HTSUSA, and the champagne glasses are classifiable
within heading 7013.29.20, HTSUSA. The goods are packaged
together for sale directly to users without any further
repacking. Therefore, parts (a) and (c) are clearly fulfilled by
the champagne glass and cake knife package.
The problem arises with part (b) of the definition. Glasses
and knives do not fulfill the same particular need or specific
activity. This office does not consider the concept of a wedding
celebration as a specific activity or particular need for the
products. These items are used for two distinct activities,
drinking champagne and cutting cake. Therefore, they do not form
a "set" within the meaning of GRI 3(b). This causes the rules
regarding "sets" to be inapplicable.
In view of the foregoing, the champagne glasses and cake
knife must be classified separately although they are packed
together. The appropriate classification for the champagne
glasses is within subheading 7013.29.20, HTSUSA, as "Glassware
of a kind used for table, kitchen...or similar purposes...
Drinking glasses, other than of glass-ceramics...Other...Valued
over $0.30 each but not over $3 each." The cake knife is
classified within heading, 8211.91.50, HTSUSA, "Knives with
cutting blades...Table knives having fixed blades...Knives with
rubber or plastic handles."
Issue 2:
Regarding the duty that may be placed upon U.S. packaging,
subheading 9801.00.10, HTSUSA, provides duty-free treatment to
U.S. products that are exported and returned without having been
advanced in value or improved in condition by any means while
abroad, provided there is compliance with the documentary
requirements of 19 C.F.R. 10.1. We have previously held that
American containers that meet all of the criteria for
classification under subheading 9801.00.10, HTSUSA, will be
afforded duty-free treatment under that tariff provision. Merely
filling the containers with its contents does not constitute an
advancement in the condition of the container. C.S.D. 89-26, 23
Cust. Bull. & Dec., No. 10, p. 35 (1989).
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HOLDING:
The champagne glasses and cake knife packaged together to be
sold for a wedding gift must be classified separately as the
articles do not meet the requirements for a "set". The items do
not fulfill the same particular need nor are they used for the
same specific activity. The champagne glasses are classifiable
under subheading 7013.29.20, HTSUSA, as "Glassware of a kind
used for table, kitchen...or similar purposes...Drinking glasses,
other than of glass-ceramics...Other...Valued over $0.30 each but
not over $3 each." The rate of duty is 30 percent ad valorem.
The cake knife is classifiable within subheading 8211.91.50,
HTSUSA, as "Knives with cutting blades...Table knives having
fixed blades...Knives with rubber of plastic handles." The rate
of duty is $0.01 each plus 5.7 percent ad valorem. The packing
materials are duty free.
The U.S. packaging that meets the requirements of subheading
9801.00.10, HTSUSA, and the documentation requirement of 19
C.F.R. 10.1 will be eligible for duty-free treatment when
imported into the United States.
Sincerely,
John Durant, Director
Commercial Rulings Division