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HQ 957288



March 22, 1995

CLA-2 CO:R:C:M 957288 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 7013.39.20

Ms. Sherry Baker
Wholesale Supply Company, Inc.
P.O. Box 24600
Nashville, TN 37202

RE: Oven to table bakeware; PC 895587; GRIs 1, 2, 3; ENs 3(b) (IX), 3(b)(X), 3(b)(VIII)

This is in response to your letter dated November 2, 1994, requesting reconsideration of pre-classification (PC) 895587 issued to you by the District Director of Customs, New Orleans, Louisiana, on April 11, 1994, concerning, in part, the classification of four oven to table bakeware articles under the Harmonized Tariff Schedule of the United States (HTSUS). Samples of each were provided for our examination.

FACTS:

All four articles have a glass dish and a silver or gold plated metal stand. All metal portions are made from an iron/zinc alloy. Iron predominates by weight in items 113RB and 112RB. Zinc predominates by weight in items 7410GYE and 7413GYE.

Item 112RB is a two-tone gold and silver plated 2 quart oblong covered food baker. The removable glass dish may be used to both prepare and serve food. When food is being served, the plated metal stand forms a cradle with handles to support the glass dish. Additionally, a plated metal cover is provided to keep food covered after preparation. Information submitted indicates that the glass is valued at $3.20 and the metal articles are valued at $3.66.

Item 113RB is a two-tone gold and silver plated 2 quart round covered food casserole. The removable glass dish can be used to both prepare and serve food. When food is being served, the metal stand forms a cradle with handles to support the glass dish. A metal cover is also provided to keep food covered after preparation. Information submitted indicates that the glass dish is valued at $2.53 and the metal articles are valued at $3.15.

Item 7410GYE is a 2 quart silver plated classic covered baker with serving spoon and lasagna server. It is comprised of a removable glass dish which may be used to both prepare and serve food and a footed metal stand, cover, serving spoon and lasagna server. When food is being served, the metal stand cradles the glass dish and provides handles. The spoon and server also aid in the serving of food. A metal cover is also provided to keep food covered after preparation. Information submitted indicates that the glass dish is valued at $1.78 and the metal articles are valued at $ 14.46. All pieces are packaged together for retail sale in the same box.

Item 7413GYE is a 3 quart silver plated classic open baker. It is comprised of a removable glass dish which can be used to both prepare and serve food and a footed metal stand, cover, serving spoon and lasagna server. When food is being served, the metal stand cradles the glass dish and provides handles. The metal spoon and server also aid in the serving of food. A metal cover is also provided to keep food covered after preparation. Information submitted indicates that the glass dish is valued at $2.05 and the metal articles are valued at $11.69. All pieces are packaged together for retail sale in the same box.

According to your letter, in PC 895587 the four items were classified under subheading 7013.39.20, HTSUS, which provides, in pertinent part, for glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes: other: other. You believe they are classifiable based on their constituent metal.

ISSUE:

Are the oven to table bakeware articles classifiable as glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes?

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:

7013 Glassware of a kind used for table, kitchen, toilet, indoor decoration or similar purposes (other than that of heading 7010 or 7018)

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

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 materials or substances in the composite goods or 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 "composite good" and what is a "set put up for retail sale" the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive, or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127, 35128, (August 23, 1989).

EN Rule 3(b) (IX) provides:

For the purposes of this Rule, composite goods made up of different components shall be taken to mean not only those in which the components are attached to each other to form a practically inseparable whole but also those with separable components, provided these components are adapted one to the other and are mutually complementary and that together they form a whole which would not normally be offered for sale in separate parts.

Items 112RB and 113RB are considered composite goods for tariff purposes. Their glass dish and metal sever and cover, while separable components, are adapted to each other and would not be offered for sale separately. Items 7410GYE and 7413GYE have spoons and lasagna servers which may be offered for sale separately. They therefore, are not considered composite goods for tariff purposes.

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).

Both the merchandise of item 7410GYE and 7413GYE comprise sets put up for retail sale. Both contain glass dishes, and metal covers, stands, spoons and lasagna servers. Each of these contain articles classifiable under different headings. Both sets are put up together to meet the need of serving food. Finally, both items are imported in a box which is suitable for sale directly to consumers without repackaging.

Classification of both the composite goods and the sets will be determined by their essential character. EN 3(b)(VIII), 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 glass baking/serving dish imparts the essential character of both the composite goods and the sets. The glass dish clearly encompasses both essential functions. It not only aids in the serving of the food but also in its preparation and baking. None of the metal components may be used during the preparation or baking of the food.

For the foregoing reason we agree with the finding in PC 895587 that items 112RB , 113RB, 7410GYE and 7413GYE are classifiable under subheading 7013.39.20, HTSUS, as glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of heading 7010 or 7018): Other: Valued not over $3 each.

HOLDING:

Items 112RB, 113RB, 7410GYE and 7413GYE are classifiable under subheading 7013.39.20, HTSUS.

Sincerely,

John Durant, Director
Commercial Rulings Division

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