CLA-2 RR:TC:MM 959515 JRS
Brett Ian Harris, Esq.
Grunfeld, Desiderio, Lebowitz & Silverman, LLP
245 Park Avenue
New York, NY 10167
RE: Pasta and glass storage articles contained within a metal
basket; composite article versus set under GRI 3; EN (IX)
and (X) to Rule 3(b)
Dear Mr. Harris:
Shonfeld's (USA) Ltd., Inc., requested a ruling from the
National Commodity Specialist Division, New York, via three
letters dated May 31, 1996, June 6, 1996 and June 20, 1996, on
the proper classification of a gift item comprised of pasta, two
glass jars with wooden tops, and a metal carrying basket. This
ruling request (A85004) has been referred to this office for
reply. In the interim, your law firm has been retained by
Shonfeld's and has adopted, without change, the argument of the
Neville, Peterson & Williams' law firm. No sample was submitted
with the ruling request; however, we are in possession of a
photograph.
FACTS:
The imported merchandise is described as a gift item
consisting of two types of pasta packed inside of two different-sized but same style of glass storage jars with wooden tops,
which are placed in a two-compartmentalized metal basket with
rattan bottom and a metal carrying handle, with a few metal
decorative "ivy leaves" attached thereto (Shonfeld style no.
WI0109). The basket and glass jars are products of China, and
the pasta is said to be a product of Italy (90%) and the United
States (10%). The item is said to be imported from China with
the three components shrink wrapped, and that it is sold as a
single item in gourmet stores, gift shops, department stores and
discount retailers.
The provisions under consideration are as follows:
1902 Pasta, whether or not cooked or
stuffed (with meat
or other substances) or otherwise
prepared, such
as spaghetti, macaroni, noodles,
lasagna, gnocchi,
ravioli, cannelloni; couscous,
whether or not pre-
pared:
Uncooked pasta, not
stuffed or otherwise
prepared:
1902.19 Other:
1902.19.20 Exclusively
pasta...Free
* * * *
7013 Glassware of a kind used for table,
kitchen,
toilet, office, indoor decoration
or similar
purposes (other than that of
heading 7010 or
7018):
Other glassware:
7013.39 Other:
Other:
7013.39.20 Valued not over $3
each...27.8% ad valorem
* * * *
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:
Other:
7323.99 Other:
* * * *
Other:
7323.99.90 Other...3.4% ad
valorem
ISSUE:
Whether the above-described pasta, glassware and metal
basket is a composite article or a set, or whether the components
should be classified individually.
LAW AND ANALYSIS:
Merchandise is classifiable under the Harmonized Tariff
Schedule of the United States (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 Harmonized Commodity Description and Coding System
Explanatory Notes (EN's) to the HTSUS, although not dispositive,
provides guidance in understanding the scope of each heading of
the Harmonized System as well as the GRIs, and are thus useful in
ascertaining the classification of merchandise under the System.
See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The argument presented is that the pasta and its container,
the glass jars, should be classified separately based on GRI 5,
because the jars are not the kind of packaging normally used for
packing pasta. You maintain that although the metal basket is
neither packing material nor a container for the pasta, it is a
packing container for the jars which hold the pasta. Applying
this analysis further, you assert that since the metal basket is
capable of reuse and, pursuant to GRI 5 again, the basket must be
classified separately from the merchanidise it holds, that is,
the glass jars.
We reject your legal argument as it is based on a flawed
application of the GRIs. In this case, GRI 5 has no application
because the three items are being imported as a complete article
and not as mere packing material for the pasta. The appropriate
tariff classification analysis for
this item begins with the application of the GRIs in sequential
order, as stated above.
The pasta, glass articles and metal basket are, prima facie,
classifiable under two or more headings, and as such,
classification cannot be made utilizing GRI 1. Classification of
goods consisting of more than one material or substance shall be
according to the principles of rule 3. See GRI 2(b). Because
two or more headings refer to part only of the materials, GRI
3(b) is considered next. GRI 3(b) specifically states:
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.
In pertinent part, Explanatory Note (IX) to GRI 3(b)
indicates that:
[f]or 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(underline added).
Furthermore, Explanatory Note (X) to GRI 3(b) provides, in
pertinent part, that:
[f]or 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 repacking (e.g., in
boxes or cases or on boards).
Applying the above EN (IX) description of a composite
article to the instant gift item, we must assess whether the
three elements are met. The three components can be said to be
adapted one to the other, that is, the pasta fits within the tall
glass jars which in turn fit within the compartmentalized metal
basket. Also, the three components may be loosely interpreted as
being mutually complementary. However, the basket and jars fail
to "form a whole which would not normally be offered for sale in
separate parts." The concept of composite goods embraces
physically separate components which are designed to fit together
only when components are not likely to be sold separately. Here,
not only are the glass jars generally sold as a separate item in
most kitchen or speciality stores, but also similar types of
metal baskets are sold separately in wine stores and other
speciality shops, either empty or filled with other gift items.
We do not find that the pasta, jars and metal basket form a
composite good.
Since the gift item is not a composite good, the next
question is whether it is a set. In classifying sets, the first
step is to determine whether the combination of articles
qualifies as a set within the meaning of the tariff and the
Explanatory Notes, namely, EN (X) to Rule 3(b), in the HTSUS.
While requirements (a) and (c) are satisfied, requirement (b) is
not. See EN (X). The articles contained in the shrink wrapped
package are not dedicated to a particular need or specific
activity; they are dedicated to more than one particular need or
specific activity. The jars merely hold and store the pasta and
the metal basket functions to hold the jars, but neither aids in
the preparation of the pasta. Moreover, both the jars and basket
can be used to hold other items. The three components are
unrelated to each other and they can function individually quite
well.
Components put up together that are dedicated to more than
one purpose (that is, more than one particular need or specific
activity) cannot be considered sets under GRI 3(b). This is made
apparent in the examples of proper sets presented in the ENs for
Rule 3(b). (See the Harmonized Commodity Description and Coding
System, Volume 1, p. 4-5.) Each example of a set in the ENs
shows that a proper set's contents are dedicated exclusively to
one specific purpose; for example, all contents of the spaghetti
meal set (package of uncooked spaghetti, sachet of grated cheese,
and a small can of tomato sauce) are dedicated to the preparation
of a spaghetti meal. The ENs specifically state that the term,
"goods put up in sets for retail sale" cover sets consisting of
different foodstuffs intended to be used together in the
preparation of a ready-to-eat dish or meal. Further, the
components of these sets are not only dedicated to a single
purpose; they are also related to one another. That is, they are
used in conjunction with one another toward the fulfillment of
that single purpose. That is why the selection of products,
consisting of a can of shrimp, a can of pƒt‚ de foie, a can of
cheese, a can of sliced bacon and a can of cocktail sausages,
were found not to be a "set" in the ENs.
As discussed above, the contents of the instant packaged
gift item are dedicated to more than one purpose. The jars and
basket do not aid in the preparation of the pasta, and are
essentially unrelated to the process of cooking pasta. Under GRI
3(b), a group of articles put up for retail sale either
constitutes a proper set or does not. When articles put up
together are determined not to form a proper set for GRI 3(b)
purposes, they are classified individually, each in its own
appropriate heading. An example in EN (X), page 5, of a bottle
of spirits (heading 2208) and a bottle of wine (heading 2204)
packaged together were found not to be a "set" and were
classified separately. Therefore, we conclude that the
components of the instant packaged gift item will have to be
classified separately.
HOLDING:
The pasta, glass storage jars and metal basket are neither a
composite article nor a set under GRI 3, and as such, each item
must be classified separately. The pasta is properly classified
under subheading 1902.19.20, HTSUS, the table/kitchen glassware
under subheading 7013.39.20, HTSUS, and the metal basket under
subheading 7323.99.90, HTSUS. The general Column one rates of
duty are free (with applicable quota and possible ADD/CVD), 27.8
percent ad valorem and 3.4 percent ad valorem, respectively.
Sincerely,
John Durant, Director
Tariff Classification
Appeals Division