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HQ 957478




September 7, 1995

CLA-2 R:C:T 957478 jb

CATEGORY: CLASSIFICATION

TARIFF NO.: 6304.99.3500

Arthur Stein
ETA Import & Export Ltd.
1 Cross Island Plaza, 3rd Floor
Jamaica, N.Y. 11422

RE: Classification of a bread warmer, consisting of a basket, a cloth warmer, and a heating element; essential character; GRI 3(b); GRI 3(c); HRL 956845

Dear Mr. Stein:

This is in response to your letter, dated October 12, 1994, on behalf of your client, E. Mishan & Sons, wherein you requested a binding classification ruling for the referenced bread warmer. A sample was received by this office and will be returned under separate cover.

FACTS:

The submitted bread warmer, referenced style number 4098, consists of three components: (1) a basket composed of open plaited material, specifically rattan; (2) a 100 percent linen textile cloth for wrapping bread, with a pocket sewn into its center, and (3) a heating pad, composed of water and synthetic sponge with an outer covering of textile material which fits into a pocket provided for it in the textile cloth described above. Together, the basket and cloth function like an ordinary bread warmer; that is, the cloth is wrapped around heated bread, to preserve its warmth as much as possible, and the wrapped bread is then held and served in the basket. The heating element is heated in a microwave oven and fitted into the pocket of the cloth warmer. It provides a source of heat for continued warmth.

ISSUE:

What is the proper classification for the bread warmer at issue?

LAW AND ANALYSIS:

Classification under the Harmonized Tariff Schedule of the United States (HTSUS) is governed by the General Rules of Interpretation (GRI). According to GRI 1, classification is determined in accordance with the terms of the headings and any relative section or chapter notes. Where goods cannot be classified solely on the basis of GRI 1, the remaining rules will be applied in sequential order.

Under GRI 2(b), the classification of articles consisting of more than one material or substance is accomplished by resort to GRI 3. According to GRI 3(b), such an article will be classified as if consisting entirely of the component material that imparts essential character to the article. Where none of the component materials imparts essential character to the article, it will be classified under GRI 3(c) in the heading applicable to the component that occurs last in numerical order among all headings meriting equal consideration. As the bread warmer at issue consists of three distinct components, it must be classified under GRI 3.

For purposes of this ruling, we will refer to the textile cloth as a cloth warmer, or warmer, and the heating pad as a heating element.

In Headquarters Ruling Letter (HRL) 956845, issued December 22, 1994, we discussed the classification of articles equipped with a heating or cooling element. The ruling articulated the proposition that the heating/cooling element of articles of this kind will not always impart essential character to the article. The ruling explained that where an article as a whole appears to function primarily as a means to employ the heating or cooling element, the heating/cooling element will usually be considered to impart essential character on the basis of its more predominant function or role. In such an instance, it is relatively clear that the heating/cooling element is the predominant component for GRI 3(b) purposes. However, where the article as a whole performs an ordinary function that merely incorporates the heating or cooling function, it is not clear that the heating/cooling element is predominant. A closer examination of the components, their functions/roles, and other factors is required.

The instant bread warmer, like other bread warmers, is designed to keep bread (or rolls, etc.) warm when served at dinner (or any appropriate time). The typical components of a basic bread warmer are a basket and a cloth for wrapping and insulating the bread. The instant bread warmer includes a third component, the heating element. While the heating element is an important part of this bread warmer, we do not believe that it is the clearly predominant component. At the same time the heating element performs its important function, the cloth warmer and the basket perform their important functions. Thus, this is not a case where the article as a whole functions primarily to employ the heating element; rather, the article as a whole performs an ordinary function that incorporates the heating element's warming function. In fact, the bread warmer could perform its basic function as a bread warmer even without the heating element, albeit less effectively. Thus, the heating element is not the predominant component on the basis of function/role.

To determine the component that imparts essential character, the functions/roles of all three components, in addition to other factors, must be examined and compared. Considering the roles played by these components (see italics in above paragraph), we conclude that no one component predominates in the way of function/role. In addition, no one component predominates with respect to the other factors that are typically considered in an essential character analysis: bulk, volume, weight, area, etc., of the whole article attributable to each component. Thus, we conclude that classification on the basis of GRI 3(b) is unavailing, for the reason that no one component imparts essential character to the bread warmer.

Proceeding to GRI 3(c),an article will be classified in the heading which occurs last in the tariff among those headings equally meriting consideration. First, we must identify the headings meriting equal consideration. The basket and the cloth warmer must be recognized as major components of this article, since they are the basic components of a typical bread warmer. The basket carries and holds the cloth-wrapped bread and is the vessel from which it is served. The cloth is wrapped around the bread to contain it and provide some insulation. In addition, the heating element is just as much a major part of the instant bread warmer as the basket and napkin because it substantially enhances the warming function of the bread warmer. Therefore, we conclude that the headings applicable to each of the components merit equal consideration under GRI 3(c).

The cloth warmer is somewhat larger than a typical napkin, and it features a pocket sewn into its center. Further, it is not used as a napkin. Therefore, we conclude that the warmer at issue is not a napkin. Instead, it is similar to the warmers classified in heading 6304 in the above cited rulings. The precise subheading depends on the material composition of the cloth. You have submitted that the cloth is 100 percent linen.

Among the headings applicable to the three components of the bread warmer, that is, the basket in heading 4602, HTSUSA, the cloth warmer in heading 6304, HTSUSA, and the heating element, in heading 3924, HTSUSA, that pertaining to the cloth warmer occurs last. Thus, under GRI 3(c), the bread warmer will be classifiable according to the heading applicable to the cloth warmer. See also HRL 957648, dated July 28, 1995, addressing a bread warmer consisting of a basket and a textile warmer, which similarly classified virtually identical merchandise in the appropriate subheading providing for other furnishing articles.

HOLDING:

The bread warmer at issue, consisting of a willow basket, a textile cloth warmer, and a heating element, is classifiable according to the heading applicable to the cloth warmer. The cloth warmer is classifiable as an other furnishing article: other: other: of vegetable fibers (except cotton): other,in subheading 6304.99.3500, HTSUSA. The applicable duty rate is 12.6 percent ad valorem, and the applicable quota designation is 899.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, you should contact the local Customs office prior to importing the merchandise to determine the current status of any import restraints or requirements.

Sincerely,

John Durant, Director

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