C.A.-2 CO:R:C:M 957281 MMC
Ms. Sherry Baker
Wholesale Supply Company, Inc.
P.O. Box 24600
Nashville, TN 37202
RE: Silver plated demitasse sets; GRI 2 (a), 3(a), 3(b); En
Rule 3(b)(x)
This is in response to your letter dated November 2, 1994,
requesting the classification of two different silver plated
demitasse sets under the Harmonized Tariff Schedule of the United
States (HTSUS). Samples of each set, together with a
description of each article in the two sets, were provided.
FACTS:
The subject articles are described as "demitasse sets" .
Item 94RB contains 6 porcelain cups valued at $1.08 . These cups
fit into 6 silver plated zinc alloy holders accompanied by 6
matching silver plated zinc spoons. The holders and spoons are
valued at $3.30. Completing the set, is a silver plated brass
sugar bowl, valued at $0.85 and a silver plated iron tray valued
at $0.75. The set is packaged together for retail sale to
consumers in a box. On the side of the box the following
appears: " Silver Plated Demitasse Set Includes 11" Round Tray,
Covered Sugar Bowl and Six Demitasse Cups with Spoons."
Item 1693 GYE contains 4 porcelain cups valued at $1.03 and
4 silver plated iron cup holders, spoons and saucers valued at
$4.38. The articles are packaged together for retail sale to
consumers in a box. Printed on the box is a picture of 4 cups
with holders, saucers and spoons and the following statement:
"Silver Plated Demitasse Set for 4."
ISSUE:
Are the demitasse sets classifiable as sets for tariff
purposes? If so, where are they classified under the HTSUS?
LAW AND ANALYSIS:
The classification of merchandise under the HTSUS is
governed by the General Rules of Interpretation (GRI's). 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 headings under consideration are:
6911 Tableware, kitchenware, other household articles and
toilet articles, of porcelain or china
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
7418 Table, kitchen or other household articles and parts
thereof, of copper; pot scourers and scouring or
polishing pads, gloves and the like, of copper;
sanitary ware and parts thereof, of copper
7907 Other articles of zinc
Inasmuch as the subject articles are described by all of
these headings, they cannot be classified according to GRI 1.
When goods cannot be classified by applying GRI 1, and if the
headings, subheadings and legal notes do not otherwise require,
the remaining GRIs are applied.
GRI 2(b) states, in pertinent part, that 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. The classification
of goods consisting of more than one material or substance shall
be according to the principles of GRI 3.
GRI 3 states that 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.
Because each of these headings refers to only part of the items
in a possible set put up for retail sale, the headings are
considered equally specific and GRI 3(b) must be applied.
GRI 3(b), HTSUS, provides:
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.
To determine what is a "set put up for retail sale" the
Explanatory Notes (ENs) of the Harmonized Commodity Description
and Coding System (HCDCS) may be utilized. EN Rule 3(b)(X) (pg.
4), provides a three-part test for "goods put up in sets for
retail sale":
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....;
(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).
The Ens, although not dispositive, are to be looked to for the
proper interpretation of the HTSUS. See, T.D. 89-80, 54 Fed.
Reg. 35127, 35128 (Aug. 23, 1989).
Both the merchandise of item 94 RB and 1693 GYE comprise
sets put up for retail sale. Item 94RB contains a silver plated
sugar bowl, tray, spoons, cup holders and porcelain cups. Item
1693 GYE contains silver plated cup holders, saucers and spoons,
as well as porcelain cups. Each of these articles is
classifiable under different headings. Both sets are put up
together to meet the need of serving coffee. Finally, both items
are imported in a box which is suitable for sale directly to
consumers without repackaging. Classification of the sets will
be determined by their essential character.
EN VIII to GRI 3(b), pg. 4, states that:
[t]he 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.
Customs is of the opinion that the various silver plated
metal pieces impart the essential character of both sets. The
sets are largely comprised of metal objects, which are more
valuable than the porcelain cups, and serve several different
functions. Metal components hold the porcelain cups, serve as
spoons to stir the coffee and, in item 94RB hold sugar which may
be added to the coffee and provide a tray/saucers to carry the
cups. The porcelain cups merely provide a vessel for the
coffee.
For the foregoing reasons we find that item 94RB is
classifiable under heading 7902, HTSUS, specifically subheading
7902.90.00, HTSUS, as other articles of zinc. Item 1693 GYE is
classifiable under heading 7323, HTSUS, specifically subheading
7323.99.10, HTSUS, as table, kitchen or other household articles
of iron or steel coated or plated with silver.
HOLDING:
Item 94RB is classifiable under subheading 7907.90.00,
HTSUS, and has a column one duty rate of 3.4% ad valorem. Item
1693 GYE is classifiable under subheading 7323.99.10, HTSUS, and
has a column one rate of 4%ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division