CLA-2 RR:CR:GC 964187AM
Mr. Jonathan P. Beck
Tower Group International
1099 Winterson Road, Ste. #105
Linthicum, MD 21090
RE: PD E81194 revoked; drill/circular saw combination kit
Dear Mr. Beck:
This is in reference to PD E81194, issued to you on May 7, 1999, concerning the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of a Black & Decker drill/ circular saw combination kit [hereinafter "kit"]. We have reviewed the decision in PD E81194 and have determined that the classification set forth in that ruling for the kit is in error. This ruling revokes PD E81194.
Pursuant to section 625(c)(1) Tariff Act of 1930 (19 U.S.C. 1625(c)(1)) as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, (Pub. L. 103-82, 107 Stat. 2057, 2186), notice of the proposed revocation of PD E81194 was published on October 18, 2000, in the CUSTOMS BULLETIN, Volume 34, Numbers 41 & 42. No comments were received in response to this notice.
FACTS:
The kit consists of the following articles: 1 battery powered drill, 1 battery powered circular saw, 2 nickel cadmium batteries, 1 battery charger, 1 flashlight, and 1 plastic fitted carrying case. No sample was submitted.
In PD E81194, Customs classified the referenced kit under the specific HTSUS subheading for each component stating that the articles, although packaged together, do not constitute a set under the HTSUS. The drill was classified in subheading 8508.10.00, HTSUS. The circular saw was classified in subheading 8508.20.00, HTSUS. The nickel cadmium batteries were classified in subheading 8507.30.80, HTSUS. The battery charger was classified in subheading 8504.40.95, HTSUS. The flashlight was classified in subheading 8513.10.20, HTSUS. The plastic carrying case was classified with the other articles under GRI 5(a), HTSUS.
ISSUE:
Whether a kit consisting of 1 battery powered drill, 1 battery powered circular saw, 2 nickel cadmium batteries, 1 battery charger, 1 flashlight, and 1 plastic fitted carrying case is classified as a set under the HTSUS?
LAW AND ANALYSIS:
Merchandise imported into the U.S. is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context that requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law.
GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any related section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in order. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and mutatis mutandis, to the GRIs. In interpreting the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUSA. See T.D. 89
80, 54 Fed. Reg. 35127 (August 23, 1989).
GRI 3(b) provides for the classification of goods put up in sets for retail sale. The rule states, in pertinent part, as follows:
(b) 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.
Explanatory Note (X) (page 5) to GRI 3(b) states that the term "goods put up in sets for retail sale" means 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.
GRI 3(c) states: "When goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration."
In the instant case, criteria (a) and (c) of the EN to GRI 3(b) are easily met. The kit consists of products that, if imported separately, are classifiable in the following five different headings:
4202 Trunks, suitcases, vanity cases, attache cases, briefcases, school satchels, spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters and similar containers; 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 of paperboard, or wholly or mainly covered with such materials or with paper: Trunks, suitcases, vanity cases, attache cases, briefcases, school satchels and similar containers:
* * * * * * * * * * * *
8504 Electrical transformers, static converters (for example, rectifiers) and inductors; parts thereof:
* * * * * * * * * * * *
8507 Electric storage batteries, including separators therefor (sic), whether or not rectangular (including square); parts thereof:
* * * * * * * * * * * *
8508 Electromechanical tools for working in the hand with self-contained electric motor; parts thereof:
* * * * * * * * * * * *
8513 Portable electric lamps designed to function by their own source of energy (for example, dry batteries, storage batteries, magnetos), other than lighting equipment of heading 8512; parts thereof:
Accordingly, the plastic carrying case is classifiable in heading 4202, HTSUS. The battery charger is classifiable under heading 8504, HTSUS. The nickel cadmium batteries are classifiable under heading 8507, HTSUS. The drill and circular saw are classifiable under heading 8508, HTSUS. The flashlight is classifiable under heading 8513, HTSUS. All of these articles are put up in the plastic fitted carrying case, a manner suitable for sale directly to users without repacking.
Moving to criteria (b), the second requirement of the EN to GRI 3(b), there appear to be no judicial cases under the HTSUS dealing specifically with the meaning of the language "to meet a particular need or carry out a specific activity". In HQ 953472, dated March 21, 1994, Customs articulated its position that in order to be classifiable as a set, the individual components must be "used together or in conjunction with another for a single purpose [need] or activity."
Clearly the batteries and battery charger are used in conjunction with the power tools for the single purpose of making the cordless power tools useable. Likewise, the plastic carrying case is designed to carry the items that compose the kit, thus providing the tools to the user in an efficient manner. It is therefore used in conjunction with the tools for the single activity of building or constructing with wood.
Nevertheless, we must determine whether the other articles in the kit are "put up together to meet a particular need or carry out a specific activity." To answer the question of whether a circular saw, a drill and a flashlight would be used in conjunction with one another for a single purpose, we consulted the internet and other sources. We found advertisements for numerous kits containing drills and flashlights, and drills and saws, but few containing all three. We did find kits by other manufacturers containing a cordless circular saw, drill and flashlight. In fact, it is unlikely that a circular saw would be used with a flashlight. In order to use a circular saw safely, one must have a well lit, flat surface that will support the wood being cut. These precautions do not lend themselves to the use of a flashlight. A flashlight may be useful, however, in correctly placing a drill when working in a closet or cabinet, attic, crawlspace, under a deck or in a basement. It is therefore likely that a number of projects would require the use of all three of these items in conjunction with one another. For instance, the saw might be used to cut the wood to specifications in a proper work space and then the drill and flashlight might be necessary to fasten the wood in a poorly lit area by use of the screwdriver head of the drill. The flashlight might also be used to illuminate a recessed area of a piece of wood in order to drill a hole in that area. All of the articles work together to carry out the activity of constructing with wood. Hence, the kit qualifies as a set within the meaning of GRI 3(b).
GRI 3(b) also directs us to consider which articles in the set merit consideration in determining the article that imparts the essential character to the set. The kit is marketed as a drill/circular saw combination kit. It is purchased for the use of the drill and the saw, not the flashlight, batteries, battery charger or plastic carrying case. The other articles in the kit simply assist the user in utilizing the drill and the circular saw and therefore do not merit equal consideration in tariff classification.
GRI 1 instructs us to first consider the headings of each chapter. Here, both the drill and the saw are classified in heading 8508, HTSUS. GRI 6 directs us to classify articles at the subheading level according to the chapter notes and GRIs. The drill, classifiable in subheading 8508.10.00, HTSUS, and the circular saw, classifiable in subheading 8508.20.00, HTSUS, are both important articles in the completion of construction projects. Applying GRI 3(b) at the subheading level, neither the drill nor the saw can be said to impart the essential character to the set over the other. By application of GRI 3(c), the instant set is classified in subheading 8508.20.00, HTSUS, the subheading which occurs last in numerical order. We note that the kit contains the same items as a kit classified as a set in NY F81504, dated February 7, 2000, except for the addition of a flashlight. That kit was classified according to GRI 3(c) under subheading 8508.20.00, HTSUS.
HOLDING:
The kit is classified in subheading 8508.20.00, HTSUS, the provision for "[E]lectromechanical tools for working in the hand with self-contained electric motor; parts thereof: Saws."
EFFECT ON OTHER RULINGS:
PD E81194, issued May 7, 1999, is revoked.
In accordance with 19 U.S.C. ยง1625(c)(1), this ruling will become effective 60 days after its publication in the CUSTOMS BULLETIN.
Sincerely,
John Durant, Director
Commercial Rulings Division