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HQ 966615




March 9, 2004

CLA-2 RR:CR:GC 966615 NSH

CATEGORY: CLASSIFICATION

TARIFF NO.: 8215.20.00

Ms. Carole Zimmer
Quality Customs Brokers, Inc.
2200 Landmeier Road
Elk Grove, IL 60007

RE: NY F84298 revoked; Barbecue and apron set

Dear Ms. Zimmer:

This letter is pursuant to U.S. Customs and Border Protection (Customs) reconsideration of NY F84298, dated March 24, 2000, on behalf of your client, Ace Products Management. We have reviewed the classification and have determined that it must be revoked. This ruling letter sets forth the correct classification.

FACTS:

The subject merchandise is identified as a “Harley-Davidson Barbecue and Apron Set.” It consists of tongs, a two-tine fork, a spatula and a textile bib apron for use in food preparation. Each of the three utensils is made of steel and has a wooden handle; the apron is woven and made of 100 percent cotton.

On March 24, 2000, Customs issued NY F84298, holding that the three utensils were classified under subheading 8215.20.00, HTSUS, and the apron was separately classified under subheading 6211.42.0081, HTSUS.

Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C. 1625(c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed revocation of NY F84298, as described below, was published in the Customs Bulletin on February 4, 2004. No comments were received in response to the notice.

ISSUE:

The first issue is whether all items constitute a set within the meaning of GRI 3(b).

If there is a GRI 3(b) set, the second issue involves a determination as to the item which gives the set its essential character.

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 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes and, provided such headings or notes do not otherwise require, according to the remaining GRIs 2 through 6.

The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff at the international level. The ENs, although neither dispositive or legally binding, facilitate classification by providing 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:

Track suits, ski-suits and swimwear; other garments:

Other garments, women’s or girls’:

6211.42.00 Of cotton

6211.42.0081 Other (359)

Spoons, forks, ladles, skimmers, cake-servers, fish-knives, butter-knives, sugar tongs and similar kitchen or tableware; and base metal parts thereof:

8215.20.00 Other sets of assorted articles

In NY F84298, the articles at issue were classified under two subheadings. The three utensils were classified under subheading 8215.20.00, HTSUS, and the apron was classified under subheading 6211.42.0081, HTSUS. The first issue is whether the three utensils and the apron together comprise a GRI 3(b) set. If so, the second issue will involve a determination as to the item which gives the set its essential character.

GRI 3(a) states, in pertinent part, 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 only to part 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. In this case, because the apron at issue would be classified under heading 6211, HTSUS, if not included in the set, GRI 3(a) cannot be applied. GRI 3(b), however, applies to goods put up in sets for retail sale and is therefore applicable in examining whether the apron is part of the barbecue set.

With respect to classifying proposed sets under GRI 3(b), EN Rule 3(b) (X) states the following:

For purposes of this Rule, the term “goods put up in sets for retail sale” shall be taken to mean goods which:
consist of at least two different articles which are, prima facie, classifiable in different headings;
consist of products or articles put together to meet a particular need or carry out a specific activity; and
are put up in a manner suitable for sale directly to users without repacking (e.g. in boxes or cases or on boards).

With respect to criteria (a), the three utensils and textile apron are classifiable in two distinct headings and thus satisfy the criteria. The tongs, two-tine fork and spatula are all classified under heading 8215, HTSUS; the apron is classified under heading 6211, HTSUS.

1) The tongs are intended to be meat tongs such as would be used during barbecuing and other food preparation. Although heading 8215, HTSUS, uses the language “sugar tongs,” EN 82.15 refers to “[s]ugar tongs of all kinds (cutting or not)meat tongs” As such, the tongs included in this set fall under heading 8215, HTSUS, specifically subheading 8215.90.50, HTSUS.

2) The “two-tine fork” is classified under heading 8215, HTSUS, specifically under heading 8215.99.24, HTSUS, which applies to “Table forksand barbecue forks with wooden handles.”

3) The spatula, although not listed under heading 8215, HTSUS, is classified therein, specifically under 8215.99.50, HTSUS, because it possesses the essential characteristics or common purpose as the other items set forth in the heading. See HQ 963975, dated July 10, 2000, holding that a spatula, although not listed among the exemplars under heading 8215, HTSUS, falls within the scope of the heading by the application of ejusdem generis.

The textile apron, the type in question being used to protect the wearer during food preparation, has repeatedly been held by Customs as classified under heading 6211, HTSUS, specifically subheading 6211.42.0081, HTSUS. See HQ 959450, dated April 7, 1997.

With respect to criteria (b), the four articles comprising the proposed set are combined to meet a particular need or carry out a specific activity. All four components contribute to the specific activity of food preparation. The tongs, two-tine fork and the spatula are hand held utensils used for the preparation of food, specifically the direct manipulation of food items. In regard to the apron, Customs believes that it is included in a set of barbecue utensils. See NY H83943. The bib apron at issue protects the wearer from barbecue spillage or grease spattering during the preparation of food. Even though the apron is not used to directly manipulate food items, as are the three utensils, its usefulness for protecting the wearer makes it a recognized and accepted item by the consumer for purposes of food preparation. Therefore, its use in conjunction with the utensils for the single purpose of food preparation is readily apparent. Although these items would have utility if sold separately, they are not multidimensional in that their usefulness is limited, and they are perceived to be limited to cooking activities.

With respect to criteria (c), it is not disputed that this set is being put up in a manner suitable for sale directly to users without repacking.

We therefore find that the subject goods constitute “goods put up in a set for retail sale” within the meaning of GRI 3(b). EN Rule 3(b) (X) directs that, if the items in question are considered a set, the classification is made according to the component, or components taken together, which can be regarded as conferring on the set as a whole its essential character. In this instance, the essential character of the set is imparted by the three utensils which are classified under subheading 8215.20.00, HTSUS, as: “Spoons, forks, ladles, skimmers, cake-servers, fish-knives, butter-knives, sugar tongs and similar kitchen or tableware; and base metal parts thereof: Other sets of assorted articles.”

Notwithstanding the apron’s inclusion as a constituent part of the set for classification purposes under GRI 3(b), the apron is a textile article and remains subject to visa and quota requirements, regardless of where the set is classified. The apron at issue falls within category 359.

HOLDING:

The barbecue utensils and the apron constitute a GRI 3(b) set and are classified under subheading 8215.20.00, HTSUS, as “Spoons, forks, ladles, skimmers, cake-servers, fish-knives, butter-knives, sugar tongs and similar kitchen or tableware; and base metal parts thereof: Other sets of assorted articles.” The apron, which falls within category 359, will remain subject to visa and quota requirements regardless of where the set is classified.

EFFECT ON OTHER RULINGS:

NY F84298 is REVOKED. In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after publication in the Customs Bulletin.

Sincerely,

Myles B. Harmon, Director
Commercial Rulings Division

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