CLA-2 RR:CR:GC 960891 MMC
Mr. David M. Murphy
Grunfeld, Desiderio, Lebowitz & Silverman LLP
245 Park Avenue, 33rd Floor
New York, New York 10167
RE: Silver-plated metal rack with Glass Mugs and Plates; NYRL
B86984 affirmed
Dear Mr. Murphy:
This is in response to your August 26, 1997, letter on
behalf of Syratech Corporation, requesting reconsideration of New
York Ruling Letter (NYRL) B86984 dated July 10, 1997, which
classified an article identified as a silver-plated metal rack
with glass mugs and plates under subheading 7013.39.2000 of the
Harmonized Tariff Schedule of the United States (HTSUS) which
provides, in pertinent part for, [g]lassware of a kind used for
table, kitchen, toilet, office, indoor decoration or similar
purposes (other than that of heading 7010 or 7018).
In a March 23, 1998, letter we inquired about an additional
written explanation and supporting evidence indicating how the
rack with glass mugs and plates met the factors outline in United
States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F. 2d
373 (1976), cert. denied, 429 U.S. 979 (hereinafter Carborundum).
In a July 21, 1998, telephonic conference, with a member of my
staff, you indicated that your August 26, 1997, letter contained
all the available information on the product.
FACTS:
The subject article was identified as item 99119442 and
consists of a 17 inch tall Christmas tree shaped silver-plated
steel buffet rack, six 13-ounce glass mugs and six 7-inch
diameter glass plates. Both the mugs and plates have a raised
leaf and berry motif. The articles are packaged together in a
specially printed box depicting the metal rack holding the plates
and glasses.
ISSUE:
Whether the silver-plated metal rack with glass mugs and
plates is classifiable as a glass set or a festive article.
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 may then
be applied.
Heading 9505, HTSUS, provides for "[f]estive, carnival or
other entertainment articles, including magic tricks and
practical joke articles; parts and accessories thereof." In
Midwest of Cannon Falls, Inc. v. United States, Court No.
92-03-00206, 1996 Ct. Int'l Trade LEXIS 15 (Ct. Int'l. Trade,
January 18, 1996), and Court No. 96-1271, 96-1279, 1997 U.S. App.
LEXIS 21617 (Fed. Cir. August 14, 1997) (hereinafter Midwest),
the Court addressed the scope of heading 9505, HTSUS,
specifically, the class or kind "festive articles." It then
applied its conclusions to 29 specific articles to determine
whether they were included within the scope of the class "festive
articles." According to the court, all of the articles were
classifiable as "festive." This application provided new
guidelines for the classification of "festive articles." In
general, merchandise is classifiable in heading 9505, HTSUS, as a
"festive article" when the article, as a whole:
1. Is not predominately of precious or semiprecious stones,
precious metal or metal clad with precious metal;
2. Functions primarily as a decoration or functional item
used in celebration of and for entertainment on a holiday
and
3. Is associated with or used on a particular holiday
Additionally, the Court gave consideration to the general criteria
for classification set forth in Carborundum. Therefore, for those
articles involving holidays, and symbols not specifically recognized
in Midwest, in addition to the above criteria, Customs will consider
the general criteria set forth in Carborundum in determining whether
the particular article is of a class or kind of good known as
"festive articles." Those criteria include: the general physical
characteristics of the article, the expectation of the ultimate
purchaser, channels of trade, environment of sale (accompanying
accessories, manner of advertisement and display), use in the same
manner as merchandise which defines the class, economic practicality
of so using the import, and recognition in the trade of this use.
The silver-plated metal rack with glass mugs and plates has no
precious or semi-precious stones, and is not predominately of
precious metal or metal clad with precious metal. Its only function
is to hold mugs and plates and to hold food and beverages in or on
those mugs and plates. Customs recognizes Christmas trees and holy
berries and leaves as symbols associated with Christmas and Christmas
as a festive holiday for tariff purposes. Furthermore, we recognize
that some utilitarian articles may be of a class or kind of
decoration considered a "festive article" for tariff purposes.
Application of the Carborundum factors will determine whether this
particular article belongs to the class.
The physical appearance of the silver-plated metal rack with
glass mugs and plates, namely its Christmas tree shape and the holly
berries and leaf motif indicate its possible use with the Christmas
holiday. However, no evidence has been provided concerning the
environment of sale, namely its limited availability during the
holiday season or advertizing and marketing which would confirm such
limited use. Without such information, use in the same manner as
merchandise which defines the class as well as the expectation for
the ultimate purchaser cannot be determined. Inasmuch as no
information from which to determine that the article falls within the
class "festive article" has been provided, the article cannot be
classified as such.
You suggest that heading 7323, HTSUS, which provides for
[t]able, 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, describes the
rack. We disagree. Heading 7323, HTSUS, is a part of Section XV of
the HTSUS. Note 1 (e) to Section XV, states that: " [t]his section
does not cover: [g]oods of chapter 71 (for example, precious metal
alloys, base metal clad with precious metal, imitation jewelry)." As
the Christmas tree shaped rack is clad with silver, a precious metal,
it is not described by heading 7323, HTSUS.
Heading 7013, HTSUS, provides for [g]lassware of a kind used for
table, kitchen, toilet, office, indoor decoration or similar purposes
(other than that of heading 7010 or 7018) and describes the mugs and
plates. Heading 7114, HTSUS, provides for [a]rticles of goldsmiths'
or silversmiths' wares and parts thereof, of precious metal or of
metal clad with precious metal, and describes the Christmas tree
shaped rack. Inasmuch as the rack with glass mugs and plates is
described by two headings, it cannot be classified according to GRI
1.
GRI 2(a) is inapplicable because it applies to incomplete or
unfinished articles, and the rack with glass mugs and plates is
imported in a finished complete condition. 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(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. As the two remaining headings under
consideration refer to part only of the rack with glass mugs and
plates, GRI 3(b) must be considered.
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 sets, 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).
We are of the opinion that the silver-plated metal rack and
glass mugs and plates qualify as sets of GRI 3(b). The articles are,
prima facie, classifiable in different headings. Moreover, the rack,
mugs and plates are designed to be used together to carry out the
specific activity of serving food; and, they are put up in a manner
suitable for sale directly to users without repacking. Accordingly,
we must determine whether the rack or the glass articles 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.
We are of the opinion that glass mugs and plates impart the
set's essential character. The mugs and plates are the articles used
to serve food. As such, they perform the main function of the set;
serving food. The glass articles are the most visually, structurally
and functionally significant components of the sets, while the rack
simply assist 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) hereinafter (Better Home). Better Home
concerned the classification of shower curtain sets. The sets
consisted of an outer textile curtain, inner plastic magnetic liner,
and plastic hooks. The Court compared the role of the constituent
materials in relation to the use of the set 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 set's essential character.
For a further discussion of sets containing silver-plated and glass
food serving articles see, Headquarters Ruling Letters 960653 and
961039 dated July 1, 1998. The silver-plated metal rack and glass
mugs and plates are classifiable under subheading 7013.39.20, HTSUS,
as "[g]lassware of a kind used for table (other than drinking
glasses) or kitchen purposes other than of glass-ceramics: [o]ther:
[o]ther: [v]alued not over $3 each."
HOLDING:
The silver-plated metal rack and glass mugs and plates are
classifiable under subheading 7013.39.20, HTSUS, as "[g]lassware of a
kind used for table (other than drinking glasses) or kitchen purposes
other than of glass-ceramics: [o]ther: [o]ther: [v]alued not over $3
each." The rate of duty is 27 percent ad valorem.
NYRL B86984 is affirmed.
Sincerely,
John Durant, Director
Commercial Rulings