MAR-2-05 RR:CR:SM 561339 KSG
De Etta D. Fennell
C V International, Inc.
1800 B Associates Lane
Charlotte, North Carolina 28217
RE: Country of origin marking and classification of cake server; substantial transformation
Dear Ms. Fennell :
This is in reference to your letter of April 6, 1999, requesting a binding ruling on the classification and country of origin marking of imported cake servers on behalf of Princess House, Inc. A sample stainless steel blade was submitted for our examination. We regret the delay in responding.
FACTS:
The imported article is a stainless steel cake server with a lead crystal handle. The stainless steel blade is made in China. The leaded crystal handle, which is made in the Czech Republic, is attached to the blade in the Czech Republic. The cost of the blade is $2.65 and the cost of the handle is $2.18. The blade is attached to the handle by gluing.
ISSUES:
What is the classification of the cake server?
What is the proper country of origin marking for the cake server?
LAW AND ANALYSIS:
1. Classification
Classification of imported merchandise is accomplished pursuant to the Harmonized Tariff Schedule of the United States (HTSUS). Classification under the HTSUS is guided by the General Rules of Interpretation of the Harmonized System (GRIs). GRI 1, HTSUS, 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[.]”
The applicable HTSUS headings and subheadings 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:
Other glassware:
7013.91 Of lead crystal:
7013.91.10 Valued not over $1 each
7013.91.20 Valued over $1 but not over $3 each.
7013.91.30 Valued over $3 but not over $5
7013.91.50 Valued over $5 each. * * *
8215 Spoons, forks, ladles, skimmers, cake-servers,
fish-knives, butter-knives, sugar tongs and
similar kitchen or tableware; and base metal parts
thereof:
Other:
8215.99 Other:
8215.99.50 Other.
When interpreting and implementing the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, while neither legally binding nor dispositive, provide a guiding commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. Customs believes the ENs should always be consulted. See, T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The cake server with a stainless steel blade and a lead crystal handle is a composite article that combines two distinct components. GRI 2(b) provides that articles that are prima facie classifiable in separate headings are classifiable pursuant to GRI 3:
(b) Any reference in a heading to a material or substance shall be taken to include a reference to mixtures or combinations of that material or substance with other materials or substances. Any reference to goods of a given material or substance shall be taken to include a reference to goods consisting wholly or partly of such material or substance. The classification of goods consisting of more than one material or substance shall be according to the principles of rule 3.
GRI 3 provides, in pertinent part, that:
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:
(a) 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.
(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.
(c) When goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading that occurs last in numerical order among those which equally merit consideration.
We first consider whether the lead crystal handle imparts the essential character to the article, because if it does not, pursuant to EN 70.13, the article must be classified by the material or component other than the glass that imparts the essential character. EN 70.13 states, in pertinent part:
This heading covers the following types of articles, most of which are obtained by pressing or blowing in moulds:
1) Table or kitchen glassware, e.g., drinking glasses, goblets, tankards, decanters, infants’ feeding bottles, pitchers, jugs, plates, salad bowls, sugar-bowls, sauce-boats, fruit-stands, cake-stands, hors-d’oeuvres dishes, bowls, basins, egg-cups, butter dishes, oil or vinegar cruets, dishes (for serving, cooking, etc.), stew-pans, casseroles, trays, salt cellars, sugar sifters, knife-rests, mixers, table hand bells, coffee-pots and coffee-filters, sweetmeat boxes, graduated kitchenware, plate warmers, table mats, certain parts of domestic churns, cups for coffee-mills, cheese dishes, lemon squeezers, ice-buckets.
* * *
These articles may be, e.g., of ordinary glass, lead crystal, glass having a low coefficient of expansion (e.g., borosilicate glass) or of glass ceramics (the latter two in particular, for kitchen glassware). They may also be colourless, coloured or of flashed glass, and may be cut, frosted, etched or engraved, or otherwise decorated, or of plated glass (for example, certain trays fitted with handles). Table-centres consisting of a simple mirror are, however, excluded (see Explanatory Note to heading 70.09).
* * *
Articles of glass combined with other materials (base metal, wood, etc.) are classified in this heading only if the glass gives the whole the character of glass articles [emphasis added]. Precious metal or metal clad with precious metal may be present, as minor trimmings only; articles in which such metals constitute more than mere trimmings are excluded (heading 71.14).
We find that the lead crystal handle is, by its intended use as a component of a cake server, similar to the enumerated articles in heading 7013, HTSUS. The handle has no independent function; it must be permanently attached to the stainless steel blade. When combined with the blade, the handle provides both a utilitarian and decorative function in that it facilitates the use of the cake server and makes the article pleasing to the eye. The Court of International Trade (CIT) has stated that the canon of construction ejusdem generis (which means literally, of the same class or kind) teaches that “where particular words of description are followed by general terms, the latter will be regarded as referring to things of a like class with those particularly described.” Nissho Iwai American Corp. v. United States (Nissho), 10 CIT 154, 156 (1986). Heading 7013, HTSUS, consists of particular words (i.e., [g]lassware of a kind used for table, kitchen, toilet, office, indoor decoration) followed by general terms (i.e., or similar purposes). Therefore, this heading requires an ejusdem generis method of construction.
The CIT further stated that “[a]s applicable to Customs classification cases, ejusdem generis requires that the imported merchandise possess the essential characteristics or purposes that unite the articles enumerated eo nomine in order to be classified under the general terms.” Nissho, p. 157.
The rule of statutory construction ejusdem generis has been further explained in the treatise Customs Law and Administration as follows:
[a]nother rule of statutory construction is that of ejusdem generis, the substance of which is that where particular words of description are followed by general terms, the latter will be regarded as referring to things of like class with those particularly described. It is invoked as an aid to statutory construction and is applicable when doubt arises as to whether a given article is to be placed in a class of which some individual objects are named. United States v. Damrak Trading Co., Inc., 43 CCPA 77, 79, C.A.D. 611 (1956) (citations omitted); Merck and Co. (Inc.) v. United States, 19 CCPA 16, 18, T.D. 44852 (1931), (citations omitted). It may not be resorted to where there is no doubt as to the meaning of a term. John V. Carr & Son v. United States, 77 Cust. Ct. 103, C.D. 4679 (1976). * * *
The rule may not be invoked to narrow, limit or circumscribe an enactment and is never applied if the intention of the legislature can be ascertained without resort thereto. Sandoz Chemical Works, Inc. v. United States, 50 CCPA 31, 35, C.A.D. 815 (1963). Sturm, Ruth; Customs Law & Administration, 3rd Edition, section 51.10, p. 67.
The lead crystal handle of the cake server does not “give the whole [cake server] the character of [a] glass article” as required by the EN. The stainless steel blade performs the primary function of cutting the cake and is used to serve the sliced portion of cake. The decorative handle facilitates these primary functions. Although it is alleged that the decorative lead crystal handle constitutes the “major selling point” and “is what makes this product coincide with the existing wedding line,” we find, for classification purposes, that the function of the lead crystal handle is ancillary to that of the stainless steel blade.
We further note that, although the lead crystal handle will be designed to be part of a wedding “collection,” such design does not make the cake server part of a “set” for classification purposes. See generally the Customs Informed Compliance Publication, Classification of Sets under the HTS, September 1999 (reprinted in the Customs Bulletin, Volume 33, Number 51, December 22, 1999, p. 100).
Note 3, Section XV, HTSUS (Section XV includes heading 8215), provides that “ . . . the expression ‘base metals’ means: iron and steel [and various other named metals].”
EN 82.15 states, in part:
This heading includes:
* * *
(4) Slices for serving fish, cake, strawberries, asparagus.
* * *
These goods may be of one piece or fitted with handles of base metal, wood, plastics, etc.
In accordance with Chapter Note 3, the heading also includes sets consisting of one or more knives of heading 82.11 and at least an equal number of articles of this heading.
The stainless steel blade performs the intended function of the cake server. Its serrated edge cuts the confection, and the broad triangular blade, simply turned 90 degrees in the hand from the cutting position, is used to lift the portion from the serving plate to the individual plate. We find that the stainless steel blade imparts the essential character of the article.
In its condition as imported, the cake server is included eo nomine in heading 8215, HTSUS. The merchandise is classified as a base metal cake server in subheading 8215.99.50, HTSUS.
2. Country of origin
Section 304 of the Tariff Act of 1930 (19 U.S.C. 1304), provides that unless excepted, every article of foreign origin imported into the U.S. shall be marked in a conspicuous place as legibly, indelibly, and permanently as the nature of the article (or its container) will permit, in such a manner as to indicate to the ultimate purchaser in the U.S. the English name of the country of origin of the article.
Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements of 19 U.S.C. 1304. Pursuant to 19 CFR 134.1(b), “country of origin” means the country of manufacture, production, or growth of any article of foreign origin entering the United States. Further work or material added to an article in another country must effect a substantial transformation in order to render such other country the country of origin. A substantial transformation results when a new and different article emerges from the processing having a distinctive name, character or use. U.S. v. Gibson-Thomsen Co., Inc., 27 CCPA 269 (1940).
If the manufacturing or combining process is merely a minor one which leaves the identity of the imported article intact, a substantial transformation has not occurred. Uniroyal, Inc. v. United States, 542 F. Supp. 1026 (CIT 1982). Assembly operations which are minimal or simple, as opposed to complex or meaningful, will generally not result in a substantial transformation. See C.S.D. 85-25. However, the issue of whether a substantial transformation occurs is determined on a case-by-case basis. Customs ruled in C.S.D. 80-111, dated September 24, 1979, that a ceiling fan assembled in the U.S. in assembly line procedures was not substantially transformed in the U.S. Customs considered factors such as the nature of the assembly, the amount of skilled labor and specialized equipment involved and the cost of the assembly process.
In Headquarters Ruling Letter (“HRL”) 950005, dated January 9, 1992, Customs ruled that sledge hammer handles made from U.S. origin blocks of green hickory wood in Canada were substantially transformed in Canada. However, the finished Chinese sledge hammer heads assembled onto the handles in Canada were not substantially transformed. Customs noted that the heads were completed articles which did not need any further manufacturing. Customs concluded that the sledge hammer head must be individually marked “Head made in China” and the handle must be marked “Handle made in Canada.”
In HRL 560817, dated August 6, 1998, Customs held that globes imported into the Philippines and assembled onto stands (of Philippine origin), are completed articles which do not need any further manufacturing other than a simple assembly. Customs determined that attaching the globes to the stands in the Philippines is a minor assembly operation that does not involve skilled labor or specialized equipment and held that the globes were not substantially transformed in the Philippines.
This case is similar to the above cited cases. The cake blade and the handle are both completed articles which do not require any further manufacturing other than a simple assembly. The Chinese cake blades do not undergo a change in character and use. A change in name alone is considered the weakest evidence of substantial transformation. National Juice Products Association v. U.S., 628 F. Supp. 978 at 989 (CIT 1986). Therefore, we find that the blades are not substantially transformed in the Czech Republic. The cake servers should be marked to indicate that the blade is made in China and the leaded crystal handle is made in the Czech Republic.
HOLDING:
The article is classified under subheading 8215.99.50, HTSUS, which provides for other base metal cake servers, other, other.
The Chinese cake blades do not undergo a substantial transformation in the Czech Republic. Therefore, pursuant to 19 CFR 134.1(b), the country of origin of the blades is China. The marking “Blade made in China, Handle made in the Czech Republic” or a similar marking would satisfy the country of origin marking requirements.
A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the Customs officer handling the transaction.
Sincerely,
John Durant, Director
Commercial Rulings Division