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HQ 959713




May 6, 1997

CLA-2 RR:TC:MM 959713 DWS

CATEGORY: CLASSIFICATION

TARIFF NO.: 4202.92.45; 8215.20.00; 8215.99.50

Port Director of Customs
4430 East Adamo Drive
Tampa, FL 33605

RE: Protest 1801-96-100082; Barbecue Utensils and Miniature Golf Bag; GRI's 3(b) and 5; Explanatory Notes 3(b)(X) and 73.23; GRI 1 Set; 8215.99.20; 7323.93.00

Dear Port Director:

The following is our decision regarding Protest 1801-96-100082 concerning your action in classifying and assessing duty on barbeque utensils and a miniature golf bag, imported together in the same package for retail sale.

FACTS:

The barbecue utensils consist of a fork, spatula, tongs, and a brush. Although all four utensils are made of stainless steel, the fork, spatula, and brush each have plastic handles. The barbecue utensils are placed inside a miniature golf bag complete with a bag cover, and the utensils and golf bag are packaged for retail sale prior to importation into the U.S. The golf bag is principally made of vinyl.

The merchandise was entered on December 20, 1994, under subheading 7323.93.00, HTSUS, as other table, kitchen or other household articles, of stainless steel. The entry was liquidated on March 22, 1996, under subheading 8215.20.00, HTSUS, as other sets of kitchen or tableware articles. The protest was timely filed on June 20, 1996.

The subheadings under consideration are as follows:

7323.93.00: [t]able, kitchen or other household articles and parts thereof, of iron or steel; . .
.: [o]ther: [o]f stainless steel.
The 1994 general, column one rate of duty for goods classifiable under this provision is 3.4 percent ad valorem.

8215.20.00: [s]poons, forks, ladles, skimmers, cake-servers, fish-knives, butter- knives, sugar tongs and similar kitchen or tableware; and base metal parts thereof: [o]ther sets of assorted articles.

The 1994 general, column one rate of duty for goods classifiable under this provision is the rate of duty applicable to that article in the set subject to the highest rate of duty.

8215.99.20: . . . : [o]ther: [o]ther: [f]orks: [w]ith rubber or plastic handles.

The 1994 general, column one rate of duty for goods classifiable under this provision is 0.5 cents each and 3.2 percent ad valorem.

8215.99.50: . . . : [o]ther: [o]ther: [o]ther (including parts).

The 1994 general, column one rate of duty for goods classifiable under this provision is 5.3 percent ad valorem.

4202.92.45: . . . : traveling bags, toiletry bags, knapsacks and backpacks, handbags, shopping bags, wallets, purses, map cases, cigarette cases, tobacco pouches, tool bags, sports bags, bottle cases, jewelry boxes, powder cases, cutlery cases and similar containers, of leather or of composition leather, of sheeting of plastics, of textile materials, of vulcanized fiber or paperboard, or wholly or mainly covered with such materials or with paper: [o]ther: [w]ith outer surface of sheeting of plastic or of textile materials: [t]ravel, sports and similar bags: [o]ther.

The 1994 general, column one rate of duty for goods classifiable under this provision is 20 percent ad valorem.

ISSUE:

Whether the barbecue utensils and the miniature golf bag, although packaged together for retail sale, constitute a set as defined in GRI 3(b). If not, whether the barbecue utensils themselves constitute a GRI 1 set.

LAW AND ANALYSIS:

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

The first issue is whether the barbecue utensils and the miniature golf bag together constitute a set. GRI 3(b) 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 Explanatory Notes may be utilized. The Explanatory Notes, although not dispositive or legally binding, 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, 54 Fed. Reg. 35127, 35128 (August 23, 1989). In part, Explanatory Note 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. Therefore, for example, six fondue forks cannot be regarded as a set within the meaning of this Rule.

(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).

It is our position that the merchandise meets two of the three requirements as set forth in Explanatory Note 3(b)(X). The barbecue utensils (heading 8215, HTSUS) and the golf bag (heading 4202, HTSUS) are different articles classifiable under different headings of the HTSUS. They are also imported packaged together in a manner suitable for sale directly to users without repacking.

The merchandise does not meet the third requirement of Explanatory Note 3(b)(X), in that it does not consist of articles put up together to meet a particular need or carry out a specific activity. It is obvious that the barbecue utensils will principally be used for the specific activity of indoor or outdoor cooking of food. However, the golf bag, which is not specially fitted to hold the barbecue utensils and does not possess any features lending itself to the activity of cooking, may be used for a number of activities, such as the storage of items or as an ornament for a den or sports room. The barbecue utensils, which are so loosely placed in the golf bag, could easily be taken out of the bag once purchased and stored elsewhere.

Therefore, as the merchandise fails the requirement set forth in Explanatory Note 3(b)(X)(b), it does not constitute a set as defined by GRI 3(b).

The next issue is whether the barbecue utensils themselves constitute a set. It is our position that, as all the utensils are classifiable under heading 8215, HTSUS, they constitute a set specifically provided for under subheading 8215.20.00, as other sets of assorted articles, and are so classifiable. The fork is classifiable under subheading 8215.99.20, HTSUS, as a fork with a plastic handle, and the other utensils are classifiable under subheading 8215.99.50, HTSUS, as other kitchen or tableware articles. As subheading 8215.99.50, HTSUS, has a higher duty rate than subheading 8215.99.20, HTSUS, its duty rate shall be the rate of duty for the barbecue utensil set.

The remaining issue to be determined is whether the golf bag may be classifiable with the barbecue utensil set based upon GRI 5. It states that:

[i]n addition to the foregoing provisions, the following rules shall apply in respect of the goods referred to therein:

(a) Camera cases, musical instrument cases, gun cases, drawing instrument cases, necklace cases and similar containers, specially shaped or fitted to contain a specific article or set of articles, suitable for long-term use and presented with the articles for which they are intended, shall be classified with such articles when of a kind normally sold therewith. This rule does not, however, apply to containers which give the whole its essential character.

(b) Subject to the provisions of rule 5(a) above, packing materials and packing containers entered with the goods therein shall be classified with the goods if they are of a kind normally used for packing such goods. However, this provision is not binding when such packing materials or packing containers are clearly suitable for repetitive use.

It is our position that the golf bag, as it relates to the barbecue utensil set, does not meet the requirements of GRI 5, and therefore may not be classifiable with the barbecue utensil set. Because the golf bag is definitely not specially shaped or fitted to hold the barbecue utensil set, it fails to meet the requirements of GRI 5(a). Also, based upon the design and manufacture of the golf bag, it is obviously suitable for repetitive use. Therefore, the golf bag fails to meet the requirements of GRI 5(b).

As the golf bag is not classifiable with the barbecue utensil set, based upon GRI 1, it is classifiable under the provision which most closely describes it, subheading 4202.92.45, HTSUS.

The protestant claimed that the barbecue utensils are classifiable under subheading 7323.93.00, HTSUS. In part, Explanatory Note 73.23 (p. 1124) states that:

The heading excludes:

(e) Cutlery and spoons, forks, ladles, etc., of headings 82.11 to 82.15.

Therefore, as the barbecue utensils are classified as a set under heading 8215, HTSUS, as stated in Explanatory Note 73.23, they are precluded from classification under heading 7323, HTSUS.

HOLDING:

The barbecue utensils and the miniature golf bag do not together constitute a set as defined in GRI 3(b). However, the barbecue utensils themselves constitute a GRI 1 set under subheading 8215.20.00, HTSUS, as other sets of kitchen or tableware articles, and are so classifiable. The set is dutiable at the rate of duty set forth under subheading 8215.99.50, HTSUS.

The miniature golf bag is classifiable under subheading 4202.92.45, HTSUS, as an other travel, sport, and similar bag, with an outer surface of a sheeting of plastic.

You are instructed to DENY the protest, except to the extent reclassification of the merchandise as indicated above results in a net duty reduction and partial allowance. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision, together with the Customs Form 19, should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing 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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