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HQ 959515

May 27, 1997

CLA-2 RR:TC:MM 959515 JRS


TARIFF NO.: 1902.19.20; 7013.39.20; 7323.99.9030

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.


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
Other glassware:
7013.39 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:
7323.99 Other:

7323.99.90 Other...3.4% ad valorem


Whether the above-described pasta, glassware and metal basket is a composite article or a set, or whether the components should be classified individually.

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.


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.


John Durant, Director

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