CLA-2 RR:CR:GC 961935 PH
TARIFF NOs.: 7013.39.20; 7323.93.00; 7323.91.50; 7323.99.90
Port Director
U.S. Customs Service
555 Battery Street
San Francisco, CA 94111
Laredo, Texas 78044
RE: Protest 2809-98-100091; spice rack and jars; glass; metal;
chrome-plated; glassware used for kitchen purposes; kitchen
articles of iron or steel; essential character; goods put up
in sets for retail sale; GRI 3(b); ENs 70.23; Rule
3(b)(VIII); Rule 3(b)(X); Better Home Plastics Corp. v.
United States; HQ 087727; NY 840647
Dear Port Director:
This is our decision on protest 2809-98-100091, against your
classification under the Harmonized Tariff Schedule of the United
States (HTSUS) of certain wire spice racks with glass jars.
FACTS:
The merchandise is invoiced as "WIRE SPICE RACK WITH 12-PC
GLASS JARS". The invoice "unit price" is between $3 and $5.
According to advertising literature provided with the protest,
"[t]his chrome rack holds 12 glass bottles with chrome lids which
are included in the set [and] [m]easures 13" x 5" x 7"." The
illustration of the article shows a wire rack similar in
construction to a sink drying rack in which are placed jars.
The entry was filed on September 8, 1997, with
classification of the merchandise in subheading 7323.91.50,
HTSUS. The entry was liquidated on March 6, 1998, with
classification in subheading 7013.39.20, HTSUS. The importer's
counsel filed this protest on April 28, 1998. The protestant
states that the merchandise is more specifically provided for in
subheading 7323.93.00, HTSUS, or, alternatively, in subheading
7323.91.50, HTSUS, than as liquidated. The protestant contends
that the merchandise is classifiable as claimed by virtue of
General Rule of Interpretation (GRI) 1 and/or 3(a), (b), and (c),
as appropriate. The protestant also cites Harmonized Commodity
Description and Coding System Explanatory Note (EN) 70.23 as
supporting classification as claimed, in that the presence of the
glass jars does not alter the character of the metal spice rack
which retains its character as an article of iron or steel. The
protestant contends that New York Ruling Letter (NY) 840647 dated
May 19, 1989, as modified by Headquarters Ruling Letter (HQ)
087727 dated September 28, 1990, is not applicable to the
merchandise because the rack and lids of the jars are chrome-plated in this case.
The HTSUS subheadings under consideration are as follows:
7013.39.20 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: ...
Other: Valued not over $3 each.
The 1997 general column one rate of duty for goods classifiable
under this provision is 27.8% ad valorem.
7323.91.50 Table, kitchen or other household articles and
parts thereof, of iron or steel; ...: ... Other:
Of cast iron, not enameled: ... Other.
The 1997 general column one rate of duty for goods classifiable
under this provision is 5.3% ad valorem.
7323.93.00 Table, kitchen or other household articles and
parts thereof, of iron or steel; ...: ... Other:
... Of stainless steel.
The 1997 general column one rate of duty for goods classifiable
under this provision is 2.6% ad valorem.
7323.99.90 Table, kitchen or other household articles and
parts thereof, of iron or steel; ...: ... Other:
... Other: Not coated or plated with precious
metal: ... Other.
The 1997 general column one rate of duty for goods classifiable
under this provision is 3.4% ad valorem.
ISSUE:
Whether the spice rack with spice jars is classifiable as
other glassware of a kind used for kitchen purposes in subheading
7013.39.20, HTSUS, or other kitchen articles of iron or steel in
subheading 7323.91.50, 7323.93.00, or 7323.99.90, HTSUS.
LAW AND ANALYSIS:
Initially, we note that the protest was timely filed (i.e.,
within 90 days after but not before the notice of liquidation;
see 19 U.S.C. 1514(c)(3)(A)) and the matter protested is
protestable (see 19 U.S.C. 1514(a)(2) and (5)).
Merchandise is classifiable under the Harmonized Tariff
Schedule of the United States (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. Pursuant to
GRI 3(b), when goods are, prima facie, classifiable under two or
more headings, classification shall be effected as follows:
(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) [by reference to the heading which
provides the most specific description], shall be classified
as if they consisted of the material or component which
gives them their essential character, insofar as this
criterion is applicable.
The Harmonized Commodity Description and Coding System
Explanatory Notes (ENs) constitute the official interpretation of
the Harmonized System. While not legally binding on the
contracting parties, and therefore not dispositive, the ENs
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 ENs should always be consulted. See T.D. 89-80, published in
the Federal Register August 23, 1989 (54 FR 35127, 35128).
The spice rack and spice jars are goods put up in sets for
retail sale. See EN Rule 3(b)(X), which provides that such sets
must consist of at least two different articles which are, prima
facie, classifiable in different headings (the rack is
classifiable in heading 7323, HTSUS, and the jars are
classifiable in heading 7013, HTSUS), consist of products or
articles put up together to meet a particular need (i.e., storing
spices), and are put up in a manner suitable for sale directly to
users without repacking (for purposes of this ruling, we assume
this to be true). Under GRI 3(b), classification of such sets is
determined on the basis of the component which imparts the
essential character.
Recently, there have been several Court decisions on
"essential character" for purposes of GRI 3(b). Better Home
Plastics Corp. v. United States, 916 F. Supp. 1265 (CIT 1996),
affirmed 119 F.3d 969 (Fed. Cir. 1997), involved the
classification of shower curtain sets, consisting of an outer
textile curtain, inner plastic magnetic liner, and plastic hooks.
Customs had classified the sets on the basis of the textile
curtain under the "default rule of GRI 3(c)", after determining
that neither the relative specificity test nor the essential
character test was applicable (119 F.3d at 971). The CIT found
that the plastic liner performed the indispensable function of
keeping water inside the shower and therefore held that the
plastic liner imparted the essential character upon the set. In
its decision affirming the CIT decision, the CAFC stated:
The [CIT] carefully considered all of the facts, and, after
a reasoned balancing of all the facts, concluded that Better
Home Plastics offered sufficient evidence and argument to
overcome the presumption of correctness. The court
concluded that the indispensable function of keeping water
inside the shower along with the protective, privacy and
decorative functions of the plastic liner, and the
relatively low cost of the sets all combined to support the
decision that the plastic liner provided the essential
character of the sets. ... The court's decision did not
rely solely, or even hinge, on the indispensability of the
water-retaining function. The decision was substantially
based on the importance of the other functions as well as
the cost of the entire set. [119 F.3d at 971]
Other decisions in which the Court looked primarily to the
role of the constituent material in relation to the use of the
goods to determine essential character include Mita Copystar
America, Inc. v. United States, 966 F. Supp. 1245 (CIT 1997),
motion for rehearing and reconsideration denied, 994 F. Supp. 393
(CIT 1998), and Vista International Packaging Co., v. United
States, 19 CIT 868, 890 F. Supp. 1095 (1995). See also,
Pillowtex Corp. v. United States, 983 F. Supp. 188 (CIT 1997), in
which the Court found that, although GRI 3(b) could not be
applied, if a GRI 3(b) analysis were performed, the essential
character would be based upon the composite good's function.
Based on the foregoing, we conclude that in an essential
character analysis for purposes of GRI 3(b), the role of the
constituent materials or components in relation to the use of the
goods is generally of primary importance, but the other factors
listed in EN Rule 3(b)(VIII) should also be considered, as
applicable. In this case, the "indispensable function" (Better
Home Plastics, supra) of the set is to store spices. The glass
jar component directly performs that function (i.e., spices are
stored inside the jars), whereas the function of the stand is
subsidiary, to hold the glass jars. The jars could store spices
without the stand, but the stand could not store spices without
the jars. Moreover, the other factors listed in EN Rule
3(b)(VIII), support the conclusion that the glass jar component
establishes the essential character of the set. Insofar as
quantity is concerned, there is one stand and there are 12 jars.
Bulk and weight also appear to support the glass jar component as
providing the essential character. In regard to value, we note
that the stated value of the set is relatively small, and that in
both Better Home Plastics decisions, the Court took note of value
as a factor in the determination of essential character (see, in
particular, 119 F.3d at 971, where the CAFC noted that the CIT
had taken into consideration "the relatively low cost of the
sets" combined with all the other relevant factors).
Accordingly, particularly on the basis of the recent Court
decisions looking primarily to the role of the constituent
materials or components in relation to the use of the goods in
determining essential character, we conclude that the essential
character of the merchandise is provided by the glass jar
component. The merchandise is classified as other glassware of a
kind used for kitchen purposes in subheading 7013.39.20, HTSUS
(classification is in subheading 7013.39.20 and not subheading
7013.39.50, HTSUS, on the basis of the unit value of the
component which provides the essential character of the set
(i.e., the unit value of a single glass jar); see EN Rule
3(b)(X), last paragraph). We note that this is consistent with
HQ 087727 dated September 21, 1997, modifying NY 840647 dated May
19, 1989. This conclusion is not inconsistent with EN 73.23,
cited by the protestant (i.e., classification is in heading 7013,
HTSUS, instead of heading 7323, HTSUS, not because the set is
more specifically covered elsewhere or because the rack loses its
character as an iron or steel article, but because the set cannot
be classified by reference to GRI 3(a) and the components of the
set are, prima facie, classifiable in different headings and,
therefore, must be classified in accordance with GRI 3(b)).
HOLDING:
The spice rack with spice jars is classifiable as other
glassware of a kind used for kitchen purposes in subheading
7013.39.20, HTSUS.
The protest is DENIED. In accordance with Section 3A(11)(b)
of Customs Directive 099 3550-065, dated August 4, 1993, Subject:
Revised Protest Directive, this decision should be mailed, with
the Customs Form 19, by your office to the protestant no later
than 60 days from the date of this letter. Any reliquidation of
the entry in accordance with the decision must be accomplished
prior to mailing of 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 the public via the Diskette
Subscription Service, Freedom of Information Act, and other
public access channels.
Sincerely,
John Durant, Director,
Commercial Rulings Division