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

1(a).

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