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HQ 960653




July 1, 1998

CLA-2 RR:CR:GC 960653 HMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 7013.39.20

David M. Murphy, Esq.
Grunfeld, Desiderio,
Lebowitz & Silverman, LLP
245 Park Avenue
33rd Floor
New York, NY 10167-3397

RE: 9-Piece Buffet Cake Set; 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; HQ 960620, 956048 and 956810.

Dear Mr. Murphy:

This is in response to your letter to the Customs National Commodity Specialist Division, New York, dated May 23, 1997, on behalf of Syratech Corporation, regarding the tariff classification of the "International Silver Company's" "9-Piece Buffet Cake Set," under the Harmonized Tariff Schedule of the United States (HTSUS). Your letter, together with a sample, was forwarded to this office for a reply. We regret the delay.

FACTS:

The sample submitted is a 9-piece buffet cake serving set, item 99110961, consisting of a large glass cake plate, 12 3/4 inches in diameter, six small serving plates, 7 1/4 inches in diameter, a silver-plated trowel, 11 1/4 inches in length and a silver-plated steel rack or stand, 7 1/4 inches in height. The rack is made of rod bent in the shape of a circle for holding the items of the set. It has two levels with the large plate placed on top of the rack and the serving plates placed on the bottom. The articles are packaged together in a specially printed box. The box depicts the rack holding the large plate on top with two slices of cake next to a serving trowel.

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%

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.... .8%

ISSUE:

Whether the 9-piece buffet cake set is 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 rack and trowel are described by heading 7323, HTSUS, and the glass plates are described by heading 7013, HTSUS. You contend 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 set is imparted by the silver-plated rack and trowel.

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 a set, 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 your contention that the cake serving set qualifies as a set of GRI 3(b). The articles are, prima facie, classifiable in different headings. Also, the glass plates, the rack and the trowel are designed to be used together to carry out the specific activity of serving cake; 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 plates 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.

You contend that the essential character is imparted by the silver-plated articles because the set is designed, marketed and sold for its silver-plating. You further argue that the overwhelming visual effect of the silver-plated articles conveys the core reason for the consumer's purchase and use of this set. We disagree with your contention that the silver-plated articles impart the essential character to the subject set.

We believe that, in this instance, the glass plates impart the essential character to the set. We note that the large glass plate has a higher value than the rack and the server. Also, it is this plate that would be used to hold a cake and, together with the serving plates, perform the main function of serving cake. We thus believe that the glass plates are the most visually, structurally and functionally significant components of the set, 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), we find that the 9-piece buffet cake set is classifiable as if consisting only of the glass plates. 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 you suggested, the glass plates 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 cake serving set will be principally used for table or kitchen purposes. See Additional U.S. Rule of Interpretation

HOLDING:

Under the authority of GRI 3(b), the "9-Piece Buffet Cake Set," item 99110961, is 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 rate of duty is 27% ad valorem.

Sincerely,

John Durant, Director
Commercial Rulings Division

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