CLA-2 RR:CR:GC 961039 HMC
Port Director of Customs
300 S. Ferry St.
Terminal Island, CA 90731
RE: Protest 2704-97-101880; Buffet Salad Set and Silver-plated
Two Tier Buffet Server; Subheading 7323.99.10; GRI 3(b);
Explanatory Notes (VIII) and (X) to GRI 3(b); Explanatory Note
70.13; Other Glassware of the Kind Used for Table, Office, Indoor
Decoration or Similar Purposes; Other Table, Kitchen or Other
Household Articles of Iron or Steel; HQs 960620; 956048 and
956810.
Dear Port Director:
This is our decision on Protest 2704-97-101880, filed
against your classification of the "International Silver
Company's" "Buffet Salad Set" (salad set), item 99110962, and
"Silver-plated Two Tier Buffet Server" (buffet set), item
99113520 . The entries under protest were liquidated on February
28, 1997, and this protest timely filed on May 23, 1997. A
sample of the buffet set was submitted for examination.
FACTS:
The protest involves two items. Item 99113520 is a silver-plated two tier buffet server, which consists of a two level
silver-plated steel rack, 14 3/4 inches in height, that holds a
total of 12 glass plates. Item 99110962 is a buffet salad set
that consists of a silver-plated steel rack, silver-plated
servers, a 10" glass bowl and 6 small glass bowls. The articles
of the sample buffet set are packaged together in a specially
printed box. The box depicts a metal rack holding 6 plates on
each level. The rack is made of a metal rod bent in the shape of
a circle to hold the plates.
The provisions 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:
7013.39 Other:
7013.39.20 Valued not over $3 each...
27.8% (1996)
* * * *
7323 Table, 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:
Other:
7323.99 Other:
Coated or plated with precious
metal:
7323.99.10 Coated or plated
with silver...
.2.4% (1996)
ISSUE:
Whether the buffet and salad sets are classifiable as a set
under subheading 7013.39.20, HTSUS.
LAW AND ANALYSIS:
Merchandise is classifiable under the HTSUS in accordance
with the General Rules of Interpretation (GRIs). GRI 1 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 provided the headings or notes do not
require otherwise, according to GRIs 2 through 6.
The silver-plated articles of the subject sets are described
by heading 7323, HTSUS, and the glass plates are described by
heading 7013, HTSUS. Counsel for Protestant contends that the
merchandise is appropriately classified under subheading
7323.99.10, HTSUS, on the premise that the items constitute a set
and that the essential character of the two sets is imparted by
the silver-plated articles.
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.
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).
In this instance, we agree with the contention that the
salad and buffet sets qualify as sets of GRI 3(b). The articles
are, prima facie, classifiable in different headings. Also, the
glass plates, the rack and the servers 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
steel silver-plated items 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.
Counsel for Protestant contends that the essential character
is imparted by the silver-plated articles because the sets are
designed, marketed and sold for their silver-plating. Counsel
further argues that the overwhelming visual effect of the silver-plated articles conveys the core reason for the consumer's
purchase and use of the sets. We disagree with the contention
that the silver-plated articles impart the essential character to
the subject sets.
We believe that, in this instance, the glass plates and
bowls impart the essential character to the sets. The plates
and bowls are the articles which would be used to serve salad or
food and, as such, they perform the main function of serving
food. We thus believe that the glass articles are the most
visually, structurally and functionally significant components of
the sets, the racks and the servers simply assisting 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), which involved the classification of shower curtain
sets, consisting of an outer textile curtain, inner plastic
magnetic liner, and plastic hooks. The Court looked to the role
of the constituent material in relation to the use of the goods
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 essential character upon the set. See also Mita
Copystar America, Inc. v. United States, CIT Slip Op. 97-73
(1997), and Vista International Packaging Co. v. United States,
19 CIT 868 (1995), in which the court also looked to the role of
the constituent material in relation to the use of the goods to
determine essential character. Based on GRI 3(b) and the cited
court decisions, we find that the salad and buffet sets are
classifiable as if consisting only of the glass articles. See HQ
960620, dated August 26, 1997, HQ 956048, dated July 7, 1994 and
HQ 956810, dated November 28, 1994, for a similar finding.
As suggested, the glass articles are described by heading
7013, HTSUS, which provides for glassware of the kind used for
table, kitchen, toilet, office, indoor decoration or similar
purposes. EN 70.13 states that heading 7013, HTSUS, covers table
or kitchen glassware. In this instance, we believe that the
buffet and salad sets will be principally used for table or
kitchen purposes. See Additional U.S. Rule of Interpretation
1(a).
HOLDING:
Under the authority of GRI 3(b), the "Buffet Salad Set,"
item 99110962, and "Silver-plated Two Tier Buffet Server," item
99113520, are properly classified under subheading 7013.39.20,
HTSUS, as "glassware of a kind used for table (other than
drinking glasses) or kitchen purposes other than of glass-ceramics: Other: Other: Valued not over $3 each." The 1996 rate
of duty is 27.8% ad valorem.
This protest should be DENIED. In accordance with Section
3A(11)(b) of Customs Directive 099 3550-065, dated August 4,
1993, Subject: Revised Protest Directive, you should mail this
decision, together with the Customs Form 19, to the Protestant no
later than 60 days from the date of this letter. Any
reliquidation of the entry or entries in accordance with the
decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office of
Regulations and Rulings will take steps to make the decision
available to Customs personnel via the Customs Rulings Module in
ACS and to the public via the Diskette Subscription Service, the
Freedom of Information Act and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division