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HQ 965590





August 30, 2002

CLA-2 RR:CR:GC 965590 GOB

CATEGORY: CLASSIFICATION

TARIFF NO.: 7013.39.20

Marty Langtry
TowerGroup International
1114 Tower Lane
Bensenville, IL 60106

RE: Reconsideration of NY G88036; Mini Cart

Dear Mr. Langtry:

This is in reply to your letter of April 16 2002, on behalf of Metro Marketing, in which you request that we reconsider NY G88036, issued to Expeditors International on behalf of Metro Marketing on March 28, 2001, by the Director, National Commodity Specialist Division, with respect to the classification, under the Harmonized Tariff Schedule of the United States (“HTSUS”), of certain mini shopping carts (“mini carts”).

FACTS:

The article at issue is described in NY G88036 as a novelty tableware article in the form of a miniature shopping cart (“mini cart”) and consisting of chrome-plated steel wire (item no. 1732). It is further described in NY G88036 as:

. . . measuring 6 inches by 6 inches by 5 inches. It contains a salt shaker, a pepper shaker, and a plastic rectangular container to hold single-serving sugar packets. The salt and pepper shakers have glass bodies, perforated plastic inner lids, and aluminum outer lids. The value of the glass salt and pepper shakers is 24 cents each.

In your letter of April 16, 2002, you described the mini cart as follows:

Item number 1732 is a miniature rolling grocery shopping cart measuring approximately 6 inches tall, 6 inches long and 5 inches wide. It is for tabletop use. The Mini Shopping Cart holds and moves salt and pepper shakers and sugar packets. Two shakers of glass with aluminum screw-on lids and a plastic holder for the sugar packets is included. The circumference of each shaker is 6.5 inches. Each is 3.5 inches tall. The plastic holder is approximately 3.75 x 2 x 2 inches. The cart is of chrome-plated steel; the wheels are plastic.

In NY G88036 Customs classified the mini cart in subheading 7013.39.20, HTSUS.

ISSUE:

What is the classification under the HTSUS of the mini cart?

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRI’s”). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI’s may then be applied. GRI 2 is not applicable here.

GRI 3 provides in pertinent part as follows:

When, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:

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.

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.

EN (VIII) for GRI 3(b) provides:

The factor which determines 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.

EN (X) to GRI 3(b) provides:

For 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).

The Harmonized Commodity Description and Coding System Explanatory Notes (“EN’s”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the EN’s provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80.

The HTSUS provisions under consideration are as follows:

3924 Tableware, kitchenware, other household articles and toilet articles, of plastics:

3924.10 Tableware and kitchenware:

3924.10.40 Other

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:

Other:

7013.39.20 Valued not over $3 each

7323 Table, kitchen or other household articles and parts thereof, of iron and steel; iron or steel wool; pot scourers and scouring or polishing pads, gloves and the like, of iron or steel:

Other:

7323.99 Other:

Not coated or plated with precious metal:

Other:

7323.99.90 Other

EN 70.13 provides in pertinent part as follows:

This heading covers the following types of articles, most of which are obtained by pressing or blowing in moulds:

(1) Table or kitchen glassware, e.g., drinking glasses, goblets, tankards . . . salt cellars, sugar sifters . . . [Emphasis in original.]

It is our determination that the mini cart constitutes a “good put up in a set for retail sale” within the meaning of GRI 3(b) as it meets the criteria specified in EN (X) to GRI 3(b), above. The mini cart consists of articles which are prima facie classifiable in at least two headings (salt and pepper shakers – heading 7013; plastic container for sugar packets – heading 3924; and cart – heading 7323); they are put up together to carry out a specific activity; and they are put up in a manner suitable for sale directly to users without repacking.

The essential inquiry, therefore, is which component of the set provides the essential character of the set. See GRI 3(b). You contend that the essential character is imparted by the cart. In support of your claim, you cite the value of the cart compared with the other items, the weight and bulk of the cart, and the fact that the good is named “Shopping Cart” on the packaging and in the product description.

In an Informed Compliance Publication (“ICP”) of February 2000 entitled New Decisions on Candle Holders v. Decorative Glass Articles, Customs stated in pertinent part as follows:

. . . the essential character of a glass article on a metal stand is generally held to be the glass portion, rather than the metal portion, of the product. Accordingly, as explained in our previous informed compliance publication, Lamps, Lighting and Candle Holders, glass articles with metal stands should generally be classified under the provision applicable to the glass articles, not under the provisions applicable to the metal. Note rulings HQ 956048, July 7, 1994; HQ 956810, November 28, 1994; HQ 960620, August 26, 1997; HQ 087727, Sept. 21, 1990; HQ 960819, July 16, 1998; HQ 960962, July 15, 1998; HQ 961095, July 20, 1998; HQ 961141, July 21, 1998; HQ 961211, July 23, 1998.

The function of a glass vessel on a metal stand is holding items. This function is performed by the glass portion of the merchandise. The metal stand is ancillary; it simply serves to support the glass. Glass articles with metal stands are often entered incorrectly under provisions applicable to the metal (e.g., provisions in Chapter 73 of the HTSUS). The rulings cited above have emphasized the fact that the function of holding or displaying items is inherent in the glass portion of the merchandise, not the metal. Based on this function, we have generally held that the essential character of this type of merchandise is represented by the glass vessel, not the metal stand. See General Rule of Interpretation (3)(b) [GRI (3)(b)], HTSUS. [All emphasis in original.]

While it is possible that the language of the ICP is not directly “on point” because the cart which is the component of the subject good is arguably distinguishable from a metal stand, we believe the points enunciated in the ICP to be instructive, very relevant, and generally “on point.” For example, in HQ 955544 dated March 31, 1994, we held that glass spice jars with a holding rack were classified in subheading 7013.39.20, HTSUS. HQ 955544 cited HQ 087727 dated September 21, 1990, which “concerned the classification of a spice rack consisting of 12 glass bottles with caps, set in a wire and wood rack.” In HQ 087727, in holding that the essential character of the above-described article was imparted by the glass jars, we stated:

. . . the role of the jars (glassware) is paramount. The function of the wire and wood rack is subsidiary to the function of the jars which is to store and display the spice. Consequently, the jars give the entire article its essential character.

We conclude that the essential character of the mini cart is imparted by the salt and pepper shakers. The function of the cart is ancillary in nature in that it serves to support the other items. We believe that the glass salt and pepper shakers are more substantial and more integral to the mini cart than the plastic holder for sugar packets. Accordingly, at GRI 3(b), we find that the mini cart is classified in subheading 7013.39.20, HTSUS, as: “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: . . . Other: . . . Other: Valued not over $3 each.”

HOLDING:

The mini cart is classified in subheading 7013.39.20, HTSUS, as: “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: . . . Other: . . . Other: Valued not over $3 each.”

EFFECT ON OTHER RULINGS:

NY G88036 is affirmed.

Sincerely,

Myles B. Harmon, Acting Director
Commercial Rulings Division

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