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HQ 957281




March 9, 1995

C.A.-2 CO:R:C:M 957281 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 7907.90.00; 7323.99.10

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

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

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