Manicurist Sterilizer Jar; drinking glasses; sets for retail sale; GRI 3; ENs 3(b) and 3(b)(X); Headings 7010 and 3923; Additional U.S. Rule of Interpretation 1(a); HQ 088123

HQ 952498 December 8, 1992 CLA-2 CO:R:C:M 952498 EJD CATEGORY: Classification TARIFF NO: 7013.29.10; 7013.29.20 Mr. David S. Chang Y.C.C. Products Inc. 431 St. Andrews Avenue Placentia, California 92670 RE: Manicurist Sterilizer Jar; drinking glasses; sets for retail sale; GRI 3; ENs 3(b) and 3(b)(X); Headings 7010 and 3923; Additional U.S. Rule of Interpretation 1(a); HQ 088123 Dear Mr. Chang: This is in response to your letters dated September 1, 1992 and September 21, 1992, concerning the tariff classification of an article described as a manicurist sterilizer jar under the Harmonized Tariff Schedule of the United States (HTSUS). A sample was submitted for our examination. FACTS: The merchandise is a glass article with a removable white plastic lid. The glass is in a cylindrical shape and is approximately 3 1/2 inches in height, with a top of about 2 7/8 inches in diameter, and a bottom about 2 1/4 inches in diameter. The glass with the lid is packaged in a white cardboard container stating the contents to be a manicurist sterilizer jar made in Taiwan and shows a picture of various manicurist tools in the glass with the lid placed on the glass rim. You state that this article, which is sold to professional manicurists (nail technicians), will hold 6 oz. of antiseptic liquid "for the purpose of infection control" and that the price would be between $.25 and $.30 each. ISSUE: What is the classification of this merchandise under the HTSUS? 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. It is an established rule of Customs law that merchandise is classifiable in its condition as imported. It is our position that in its imported form, the merchandise is a set composed of a drinking glass and a plastic lid. GRI 3 must be considered in the classification of merchandise put up in sets for retail sale. GRI 3(b) provides that: [m]ixtures, 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 understanding the language of GRI 3(b), the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes, although not dispositive, are to be used to determine the proper interpretation of the HTSUS. EN 3(b)(X) provides that "[f]or the purpose 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)." HCDCS, p. 4. The Manicurist Sterilizer Jar meets the criteria for treatment as a set under GRI 3 analysis. The merchandise "consist[s] of at least two different articles which are, prima facie, classifiable in different headings", the merchandise is "put up together to meet a particular need or carry out a specific activity," and the merchandise is "put up in a manner suitable for sale directly to users without repacking." The merchandise is described by and prima facie classifiable under heading 7013, HTSUS, as drinking glasses, and in heading 3923, HTSUS, as plastic lids. Therefore, it must be determined whether the drinking glass or the plastic lid gives the merchandise its essential character. In general, essential character has been construed to mean the 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), reads as follows: The factor which determines essential character will vary between different kinds of goods. It may, for example, be determined by the nature of the material, its bulk, quantity, weight or value, or by the role of the constituent material in relation to the use of the goods. HCDCS, p. 4. Taking the above notes into consideration, we are of the opinion that the essential character of the subject composite good is derived from the drinking glass. Heading 7013, HTSUS, is considered a use provision. Additional U.S. Rule of Interpretation 1(a), HTSUS, provides: In the absence of special language or context which otherwise requires, a tariff classification controlled by use (other than actual use) is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use." In Headquarters Ruling Letter (HQ) 088123, dated February 25, 1991, Customs dealt with the classification of glass containers. In HQ 088123, we stated that "[t]he sample of the imported glass shows it to be a type of drinking glass; nothing in its appearance gives any indication that it is dedicated to any specific use...." It is the principal use, as distinguished from the actual use, which controls. In HQ 088123, we determined that the principal use of this class or kind of glass is as a drinking glass, classifiable under subheading 7013.29.10, HTSUS. See also HQ 951391, dated August 10, 1992. In our opinion, the glass is not different from other ordinary, inexpensive, drinking glasses provided for in subheading 7013.29, HTSUS. GRI 3(b) requires that the glass with lid is properly classified under subheading 7013.29.10, HTSUS, which provides for "[g]lassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of heading 7010 and 7018)...[d]rinking glasses, other than of glass- ceramics...[o]ther...[o]ther... [v]alued not over $0.30 each," with a rate of duty of 38 percent ad valorem. If the glass jar is valued over $0.30 but not over $3.00 each, it is properly classified under subheading 7013.29.20, HTSUS, with a rate of duty of 30 percent ad valorem. HOLDING: If the glass is valued not over $0.30 each, the glass and lid are properly classified under subheading 7013.29.10, HTSUS. If the glass is valued over $0.30 but not over $3.00 each, the glass and lid are properly classified under subheading 7013.29.20, HTSUS. Sincerely, John Durant, Director