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HQ 961039




July 1, 1998

CLA-2 RR:CR:GC 961039 HMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 7013.39.20

Port Director of Customs
300 S. Ferry St.
Terminal Island, CA 90731

RE: Protest 2704-97-101880; Buffet Salad Set and Silver-plated Two Tier Buffet Server; 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; HQs 960620; 956048 and 956810.

Dear Port Director:

This is our decision on Protest 2704-97-101880, filed against your classification of the "International Silver Company's" "Buffet Salad Set" (salad set), item 99110962, and "Silver-plated Two Tier Buffet Server" (buffet set), item 99113520 . The entries under protest were liquidated on February 28, 1997, and this protest timely filed on May 23, 1997. A sample of the buffet set was submitted for examination.

FACTS:

The protest involves two items. Item 99113520 is a silver-plated two tier buffet server, which consists of a two level silver-plated steel rack, 14 3/4 inches in height, that holds a total of 12 glass plates. Item 99110962 is a buffet salad set that consists of a silver-plated steel rack, silver-plated servers, a 10" glass bowl and 6 small glass bowls. The articles of the sample buffet set are packaged together in a specially printed box. The box depicts a metal rack holding 6 plates on each level. The rack is made of a metal rod bent in the shape of a circle to hold the plates.

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...
27.8% (1996)

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...
.2.4% (1996)

ISSUE:

Whether the buffet and salad sets are 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 articles of the subject sets are described by heading 7323, HTSUS, and the glass plates are described by heading 7013, HTSUS. Counsel for Protestant contends 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 two sets is imparted by the silver-plated articles.

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 sets, 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 the contention that the salad and buffet sets qualify as sets of GRI 3(b). The articles are, prima facie, classifiable in different headings. Also, the glass plates, the rack and the servers are designed to be used together to carry out the specific activity of serving food; 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 articles 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.

Counsel for Protestant contends that the essential character is imparted by the silver-plated articles because the sets are designed, marketed and sold for their silver-plating. Counsel further argues that the overwhelming visual effect of the silver-plated articles conveys the core reason for the consumer's purchase and use of the sets. We disagree with the contention that the silver-plated articles impart the essential character to the subject sets.

We believe that, in this instance, the glass plates and bowls impart the essential character to the sets. The plates and bowls are the articles which would be used to serve salad or food and, as such, they perform the main function of serving food. We thus believe that the glass articles are the most visually, structurally and functionally significant components of the sets, 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) and the cited court decisions, we find that the salad and buffet sets are classifiable as if consisting only of the glass articles. 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 suggested, the glass articles 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 and salad sets 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 "Buffet Salad Set," item 99110962, and "Silver-plated Two Tier Buffet Server," item 99113520, are 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 1996 rate of duty is 27.8% ad valorem.

This protest should be DENIED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you should mail this decision, together with the Customs Form 19, to the Protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing 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 to the public via the Diskette Subscription Service, the Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division

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