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HQ 959568




July 11, 1997

CLA-2 RR:TC:MM 959568 HMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 8205.51.30

Port Director of Customs
P.O. Box 619050
DFW Airport, TX 75261

RE: IA 27/96; "6-Piece Kitchen Gadget Set;" Subheadings 8205.51.30, 8205.55.60 and 8205.90.00; Household Handtools; Other Handtools; GRI 3(b); GRI 6; Explanatory Notes (VIII) and (X) to GRI 3(b); Additional U.S. Rule of Interpretation 1(a); Hartz Mountain Corp. v. United States; Explanatory Note 82.05; NY 881077 and NY 864109.

Dear Port Director:

This is in response to your memorandum of July 1, 1996, (CLA1-01:D:C CLN), forwarding a request for internal advice, dated May 14, 1996, submitted by Evans and Wood & Co, Inc., on behalf of B&F Systems, Inc., concerning the classification of a 6-Piece Kitchen Gadget Set (kitchen set) under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The merchandise consists of the following five kitchen hand tools: corkscrew opener, garlic press, potato peeler, bottle opener and can opener, plus a special stand to store the tools. The stand and the tools are sold together, gift boxed.

The merchandise was entered under subheading 8205.51.30, HTSUS, as household hand tools. However, you informed the importer that, based on New York Ruling (NY) 881077, dated December 11, 1992, the kitchen set was classifiable under subheading 8205.90.00, HTSUS, as a set of articles of two or more subheadings of heading 8205, HTSUS. The rate of duty under subheading 8205.90.00, HTSUS, is the rate of duty applicable to that article in the set subject to the highest rate of duty. You determined that the highest rate of duty was that of subheading 8205.59.55, HTSUS, the subheading that you found applicable to the corkscrew opener.

The provisions under consideration are as follows:

8205 Handtools (including glass cutters) not elsewhere specified or included; blow torches and similar self-contained torches; vises, clamps and the like, other than accessories for and arts of machine tools; anvils; portable forges; hand- or pedal-operated grinding wheels with frameworks; base metal parts thereof:
Other handtools (including glass cutters) and parts thereof:
8205.51 Household tools, and parts thereof:
Of iron or steel:

8205.51.30 Other(including parts)...4.3%

8205.59 Other:
Other:
Other:
8205.59.55 Other...5.3%

8205.90.00 Sets of articles of two or more of the foregoing subheadings...the rate of duty applicable to that article in the set subject to the highest rate of duty

ISSUE:

Whether the articles in the "6-Piece Kitchen Gadget Set" are classifiable as a household hand tool set of subheading 8205.51.30, HTSUS.

LAW AND ANALYSIS:

Merchandise is classifiable under the 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. GRI 6 states that the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. For the purposes of this rule, the relative section, chapter and subchapter notes also apply, unless the context otherwise requires.

There is no dispute that the tools of the kitchen set fall under heading 8205, HTSUS, and that the stand is provided for in heading 3924, HTSUS. The kitchen set is therefore not described in any one heading of the HTSUS.

GRI 3(a) states that when, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, 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.

GRI 3(b) states that 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. Since we have various items sold together with a stand, we must first determine, at the heading level, if we have a set put up for retail sale.

The Harmonized Commodity Description And Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized system. While not legally binding on the contracting parties, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the System. Customs believes the Notes should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

Explanatory Note (X) to GRI 3(b), at page 5, states that 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).

In this instance, we believe the kitchen set meets the ENs definition of "goods put up in sets for retail sale" because it: (1) consists of at least two different articles which are, prima facie, classifiable in different headings; (2) consists of articles put up together to carry out the specific activity of food preparation in that the stand is specifically designed to hold the kitchen tools; and, (3) the articles are put up in a manner suitable for sale directly to users without repacking. We thus believe that the kitchen set qualifies as a set of GRI 3(b). Accordingly, we must find whether the tools or the stand gives the set its essential character.

Explanatory Note (VIII) to GRI 3(b), at page 4, states that 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.

We believe that, in this instance, the tools impart the essential character to the kitchen set. They are the most visually, numerically and structurally significant components of the set. Furthermore, the tools would be the items used to perform the main function of food preparation. The stand simply assists in this function, as a storage compartment for the tools and to keep them readily accessible to the user. Based on GRI 3(b), we find that the kitchen set is classifiable as if consisting only of the hand tools.

We must now determine what is the classification of these kitchen hand tools at the subheading level. Although there is no dispute that the tools are provided in heading 8205, HTSUS, the importer contends that the merchandise is appropriately classified under subheading 8205.51.30, HTSUS, as household hand tools, and not under subheading 8205.59.55, HTSUS. The importer cites NY 864109, dated July 9, 1991, to support its contention and states that NY 881077 does not apply in this instance. In NY 881077, Customs classified three kinds of Screwpull cork screws. This ruling does not explain whether these items were intended for use in the home. However, the National Import Specialist has indicated that the Screwpull cork screws of NY 881077 were of the kind principally used in a commercial establishment. In contrast, in NY 864109, Customs found that a cork screw included in a set with various cutlery articles made of pewter was classifiable under subheading 8205.51.75, HTSUS. We find that the foregoing rulings are distinguishable and do not apply in this instance since here we do not have cutlery articles nor cork screws of the kind used in a commercial establishment; but, we agree with the importer's contention that the items in the kitchen set are household hand tools of subheading 8205.51.30, HTSUS.

General EN to Chapter 82, at page 1195, states that this Chapter includes tools which, apart from certain specified exceptions (e.g., blades for machine saws), are used in the hand (headings 82.01 to 82.05). EN 82.05, at page 1201, states that

[t]his heading covers all hand tools not included in other headings of this Chapter or elsewhere in the Nomenclature (see the General Explanatory Notes to this Chapter), together with certain other tools or appliances specifically mentioned in the title.

EN 82.05 further states that this group includes:

(1) A number of household articles, including some with cutting blades but not including mechanical types (see the Explanatory Note to heading 82.10), having the character of tools and accordingly not proper to heading 73.23, such as:

Flat irons (gas, paraffin (kerosene), charcoal, etc., types, but not electric irons which fall in heading 8516), curling irons; bottle openers, cork screws, simple can openers (including keys); nut-crackers....

The U.S. Court of International Trade (CIT) has noted Webster's New World Dictionary of American English 654 (3d College ed. 1988)'s definition of the term "household" as "of a household or home; domestic." The Court determined that when "household" is used with the term "articles" a use provision is created. Hartz Mountain Corp. v. United States, 903 F.Supp. 57, 59, CIT Slip Op. 95-154(Sept. 1, 1995). The Court found the phrase "household articles" to be a use provision within the context of subheading 3924.90.50, HTSUS. Similarly, we believe that, within the context of subheading 8205.51, HTSUS, when "household" is used with the term "tools" a use provision is created.

Additional U.S. Rule of Interpretation 1(a), HTSUS, states that 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. The subject articles will thus fall under subheading 8205.51, HTSUS, if they belong to the class or kind of articles principally used in the home. The Court has established various factors, which are indicative but not conclusive, to apply when determining principal use within a particular class or kind. They include: general physical characteristics, the expectation of the ultimate purchaser, channels of trade, environment of sale (accompanying accessories, manner of advertisement and display), use in the same manner as merchandise which defines the class, economic practicality of so using the import, and recognition in the trade of this use. See Hartz Mountain Corp., 903 F.Supp. at 59. In this instance, these factors are helpful in determining whether the gadgets in the kitchen set are intended for home use.

The kitchen set in issue consists of five kitchen hand tools, including a corkscrew opener, a garlic press, a potato peeler, a bottle opener and a can opener. Not only are some of these items specifically mentioned in the ENs to heading 8205, HTSUS, to wit, bottle openers, cork screws and simple can openers, the evidence presented also shows that the articles are marketed as household implements for use in a kitchen or a table. Moreover, the evidence presented indicates that the consumer will generally be expected to store such items in the kitchen of a home. We therefore find that the tools of the "6-Piece Kitchen Gadget Set" will be principally used in a kitchen or a table for household purposes, and, as such, they are classifiable under subheading 8205.51.30, HTSUS, as other household tools of iron or steel.

HOLDING:

Under the authority of GRI 1, the "6-Piece Kitchen Gadget Set" is properly classifiable under subheading 8205.51.30, HTSUS, as "[o]ther handtools...: [h]ousehold tools...: [o]f iron or steel: [o]ther. The rate of duty is 4.3% ad valorem.

Please advise the internal advice applicant of this decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Tariff Classification Appeals Division

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