HQ 0953896 - IA 11/93; Swimming Pool and Spa Test Kits; Swimming Pool Accessories; GRI 3(b); Explanatory Note 3(b)(X); Chapter 95, Note 3; HQs 952716, 953141, and 952249; Principal Use; Accessories; Additional U.S. Rule of Interpretation 1(c); 3822.00.50 - United States International Trade Commision Rulings

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HQ 953896
February 2, 1994

CLA-2 CO:R:C:M 953896 DWS

CATEGORY: CLASSIFICATION

TARIFF NO.: 9506.99.55

District Director
U.S. Customs Service
880 Front Street, Rm. 5-s-9
San Diego, CA 92188

RE: IA 11/93; Swimming Pool and Spa Test Kits; Swimming Pool Accessories; GRI 3(b); Explanatory Note 3(b)(X); Chapter 95, Note 3; HQs 952716, 953141, and 952249; Principal Use; Accessories; Additional U.S. Rule of Interpretation 1(c); 3822.00.50

Dear District Director:

This is in response to your memorandum of January 27, 1993 (CLA-1:OM:CO SJP), relating to Internal Advice 11/93 initiated by a letter dated January 8, 1993, from Stein, Shostak, Shostak & O'Hara, on behalf of Blue Devil Industries, Inc., concerning the classification of swimming pool test kits under the Harmonized Tariff Schedule of the United States (HTSUS). We have also considered the supplemental submissions made by counsel.

FACTS:

The merchandise consists of swimming pool and spa test kits. All of the kits contain reagent solutions or tablets, and most also contain plastic color comparator blocks, depending on the tests to be performed. The kits are packaged in reusable plastic containers, and are used for testing the various qualities of water in swimming pools and spas, including the amount of free chlorine, calcium hardness, pH, acid demand, base demand, and alkalinity.

The plastic color comparator blocks contain tubes for mixing swimming pool or spa water and the chemical reagents to create mixtures, the color of which is then compared with the colors and numerical gradations found on each side of these tubes to ascertain how much, if any, of various chemicals should be added to the pool or spa water. Each of the tubes is labeled as to the test to be performed and the specific amount of pool or spa water to be included therein to insure proper results.

The plastic color comparator blocks included in the kits are manually assembled in Mexico using molded plastic parts, which are joined together by sonic welding machines. Hot stamps are then applied to the tubes. In a separate operation in Mexico, liquid testing reagents are formulated and bottled by mixing predetermined amounts of powdered reagents with water. Completed test kits, each consisting of a plastic comparator block, appropriate reagents, and instructions for use are packaged in protective molded plastic containers.

The subheadings under consideration are as follows:

3822.00.50: [c]omposite diagnostic or laboratory reagents, other than those of heading 3002 or 3006: [o]ther.

The general, column one rate of duty for goods classifiable under this provision is 5 percent ad valorem.

9506.99.55: [s]wimming pools and wading pools and parts and accessories thereof.

The general, column one rate of duty for goods classifiable under this provision is 5.3 percent ad valorem.

ISSUE:

Whether, for classification purposes, the swimming pool and spa test kits are sets.

Whether the swimming pool and spa test kits are classifiable under subheading 3822.00.50, HTSUS, as reagents, or under subheading 9506.99.55, HTSUS, as swimming pool accessories.

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification is determined according to the terms of the headings and any relative section or chapter notes.

To determine whether the merchandise constitutes sets, GRI 3(b) must be consulted. It states 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 the HTSUS, the Harmonized Commodity Description and Coding System (HCDCS) Explanatory Notes may be utilized. The Explanatory Notes, although not dispositive, are to be used to determine the proper interpretation of the HTSUS. 54 Fed. Reg. 35127, 35128 (August 23, 1989). Explanatory Note 3(b)(X) (p. 4) states 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).

For classification purposes, it is our position that the subject kits are sets. They consist of articles classifiable in different headings and they are put up in a manner suitable for sale directly to users without repacking. Also, the kits consist of articles put up together to carry out a specific activity, in that their purpose is to test the chemical composition of swimming pool or spa water.

Chapter 95, note 3, HTSUS, states that:

[s]ubject to note 1 above, parts and accessories which are suitable for use solely or principally with articles of this chapter are to be classified with those articles.

In HQ 952716, dated March 3, 1993, we held that a thermometer for use in swimming pools was held to be classifiable as a swimming pool accessory under subheading 9506.99.55, HTSUS. In the ruling, we stated that:

[t]he term "accessory" is not defined in either the HTSUS or in the [HCDCS] Explanatory Notes. However, this office has stated that the term "accessory" is generally understood to mean an article which is not necessary to enable the goods with which they are used to fulfill their intended function. They are of secondary importance, but must, however, contribute to the effectiveness of the principal article (e.g., facilitate the use or handling of the principal article, widen the range of its uses, or improve its operation). See HQ 950166, dated November 8, 1991.

This office has on several occasions considered the issue of what constitutes a swimming pool accessory. For example, in HQ 950166, we determined that a hinged plastic fin which attached a pool cleaning brush was classifiable as a swimming pool accessory. In HQ 085895, dated November 11, 1989, we classified a roller system for swimming pool covers as a swimming pool accessory.

The thermometers in question, as did the plastic fin and roller system, contribute to the effectiveness of the principal article by allowing the user to determine the pool or spa's temperature before entering the water. Thus, the thermometers are accessories. . .

According to the reasoning in HQ 952716, it is our position that the swimming pool and spa test kits are accessories. The kits contribute to the effectiveness of a swimming pool or spa by allowing a user to test the water for various qualities, including the amount of free chlorine, calcium hardness, pH, acid demand, base demand, and alkalinity. By determining these qualities, the user will know what chemicals to add to the water to make it safe and comfortable for those using the swimming pool or spa.

We must now determine whether the kits are suitable for use principally with the swimming pools of heading 9506, HTSUS. Customs defines "principal use" as that use which exceeds each other single use of the article. See 952249, dated October 30, 1992. Although the kits can be used with spas, we find that they are principally used with swimming pools. It is our understanding from counsel for the importer that more swimming pools are sold in this country than are spas. It is also are understanding that swimming pools are generally much larger than spas and hold a larger quantity of water. With the presence of a greater quantity of water, the water is subject to a greater chance of chemical change requiring more extensive testing. Therefore, we are satisfied with counsel's claim that the kits are principally used with swimming pools.

Consequently, under chapter 95, note 3, HTSUS, the kits are to be classified with the swimming pools of heading 9506, HTSUS, as accessories under subheading 9506.99.55, HTSUS.

Consideration has been given as to whether Additional U.S. Rule of Interpretation 1(c) precludes classification of the kits under heading 9506, HTSUS, and directs that the kits be classifiable under heading 3822, HTSUS, because the reagents in the kits impart the essential character of the kits.

Additional U.S. Rule of Interpretation 1(c) states that:

[i]n the absence of special language or context which otherwise requires -

(c) a provision for parts of an article covers products solely or principally used as a part of such articles but a provision for "parts" or "parts and accessories" shall not prevail over a specific provision for such part or accessory.

We find that the above rule does not apply in this case because chapter 95, note 3, HTSUS, is "special language which otherwise requires". Chapter 95, note 3, HTSUS, directs that the kits, which are accessories and are principally used with swimming pools, are to be classifiable under heading 9506, HTSUS. Classification of the merchandise under heading 3822, HTSUS, is therefore precluded. See HQ 952716 and HQ 953141, dated February 8, 1993.

HOLDING:

The swimming pool and spa test kits are sets classifiable under subheading 9506.99.55, HTSUS, as swimming pool accessories.

This decision should be mailed by your office to the internal advice requester no later than 60 days from the date of this letter. On that date, the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Ruling Module in ACS and the public via the Diskette Subscription Service, Lexis, Freedom of Information Act, and other public access channels.

Sincerely,

John Durant, Director

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