OT:RR:CTF:CPMM H297785 APP
Consumer Products and Mass Merchandising
Center of Excellence and Expertise
U.S. Customs and Border Protection
1699 Phoenix Parkway, Suite 400
College Park, Georgia 30349
Attn.: Michael Phillips, Import Specialist
RE: Protest and Application for Further Review Number 3001-18-100003; Tariff classification of a four-piece barbeque tool set
Dear Mr. Phillips:
The following is our decision regarding the Application for Further Review (“AFR”) of Protest Number 3001-18-100003, timely filed on January 9, 2018, on behalf of Target General Merchandise, Inc. (“protestant”). The AFR concerns U.S. Customs and Border Protection’s (“CBP”) tariff classification, under the Harmonized Tariff Schedule of the United States (“HTSUS”), of a four-piece barbeque (“BBQ”) tool set from China.
FACTS:
The instant item is an Outdoor Origins four-piece BBQ tool set (DPCI 009-06-0092). The grill set consists of a digital thermometer fork, a spatula, tongs, and a grill brush. The spatula, tongs, and grill brush are of stainless steel construction and have a wooden handle. The grill brush has stainless steel bristles. The tongs and the spatula together have a greater weight and value than the thermometer fork. The stainless steel thermometer fork has a digital liquid crystal display (“LCD”) readout and displays current and target temperatures. The fork weighs about the same as the spatula and less than the tongs and the grill brush. The retail packaging, which is internally fitted to hold each of the tools, markets the grill set as a “4 piece BBQ tool set,” which contains a “stainless steel spatula,” a “stainless steel grill brush” and “stainless steel tongs,” and includes a “programmable thermometer fork.”
Below is a picture of the grill set provided by protestant:
The Protest and AFR cover two entries of the subject grill set made on August 31, 2016, and September 15, 2016, under subheading 8215.99.50, HTSUS, dutiable at 5.3% ad valorem, which provides for “Spoons, forks, ladles, skimmers, cake-servers, fish-knives, butter-knives, sugar tongs and similar kitchen or tableware; and base metal parts thereof: Other: Other: Other.” On July 14 and 28, 2017, the entries were liquidated as entered. This Protest/AFR, filed on January 9, 2018, request reliquidation under subheading 9025.19.8080, Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”), dutiable at 1.8% ad valorem, which provides for “Hydrometers and similar floating instruments, thermometers, pyrometers, barometers, hygrometers and psychrometers, recording or not, and any combination of these instruments; parts and accessories thereof: Thermometers and pyrometers, not combined with other instruments: Other: Other: Other.”
ISSUE:
Whether the subject grill set is classifiable as forks, tongs, and other similar kitchen or tableware of heading 8215, HTSUS, or as a thermometer of heading 9025, HTSUS.
LAW AND ANALYSIS:
CBP first notes that the matter is protestable under 19 U.S.C. § 1514(a)(2), as a matter on classification. The Protest/AFR was timely filed within 180 days of liquidation of the entries. See Miscellaneous Trade and Technical Corrections Act of 2004, Pub. L. 108-429, § 2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)).
Further review of this Protest is properly accorded to protestant pursuant to 19 C.F.R.
§ 174.24(b) because the decision against which the Protest was filed involves questions of law or fact, which have not been ruled upon by the Commissioner of Customs or his designee, or by the courts.
Merchandise imported into the United States is classified under the HTSUS, in accordance with the General Rules of Interpretation (“GRIs”). GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in order. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the heading and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order. Pursuant to GRI 6, classification at the subheading level uses the same rules, mutatis mutandis, as classification at the heading level.
GRI 5(a) provides that containers specially shaped or fitted to contain specific articles, suitable for long-term use and entered with the articles, shall be classified with such articles when of a kind normally sold therewith. In addition, pursuant to GRI 5(b), packing materials and packing containers that are not suitable for repetitive use are also classified with the goods.
The HTSUS provisions under consideration are as follows:
8215 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:
Other:
8215.99 Other:
8215.99.50 Other (including parts)
. . .
9025 Hydrometers and similar floating instruments, thermometers, pyrometers, barometers, hygrometers and psychrometers, recording or not, and any combination of these instruments; parts and accessories thereof:
Thermometers and pyrometers, not combined with other instruments:
9025.19 Other:
9025.19.80 Other
9025.19.8080 Other
The merchandise consists of individual articles that are, prima facie, classifiable in different headings and packaged together for retail sale. Consequently, consideration is given to GRI 3, which provides, in relevant part, as follows:
3. When, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:
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.
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.
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 interpreting the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) may be utilized. The ENs, though not dispositive or legally binding, provide commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed.
Reg. 35127, 35128 (August 23, 1989).
EN (VIII) to GRI 3(b), states, “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.”
EN (X) to GRI 3(b) defines the term “set” in GRI 3(b) as follows:
(X) For the 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 up together to meet a particular need or carry out a specific activity; and
are put up in a manner suitable for sale directly to end users without repacking (e.g., in boxes or cases or on boards).
Protestant asserts that the tools are classifiable under heading 9025, HTSUS, specifically under subheading 9025.19.8080, HTSUSA, as a GRI 3(b) set in which the thermometer fork imparts its essential character because arguably it alone constitutes half of the set value, is the only tool with a dual action, and the packaging highlights the fork.
Consistent with GRI 3(b) EN (X)(a), (b) and (c), the individual components of the instant grill set are: (1) prima facie classifiable in different headings (the thermometer fork in
heading 9025, HTSUS; the tongs and the spatula in heading 8215, HTSUS; and the brush in heading 9603); (2) intended to work together to meet the specific activity of food preparation; and (3) put up in a manner suitable for sale directly to the user without repackaging. Therefore, the four-piece grill set meets the definition of a GRI 3(b) retail set for tariff classification purposes.
In Estee Lauder, Inc. v. United States, 815 F. Supp. 2d 1287, 1299-1300 (CIT 2012), the Court of International Trade (“CIT”) held that a GRI 3(b) set should be classified according to the item that provided the essential character. Essential character is determined based on a review of “the nature of the [good], its bulk, quantity, weight or value, or by the role of a constituent [good] in relation to the use of the goods.” Id. at 1300. This list is not exhaustive. The essential character of an article is “’that which is indispensable to the structure, core or condition of the article, i.e., what it is.’ Further, ‘the existence of other materials which impart something to the article ought not to preclude an attempt to isolate the most outstanding and distinctive characteristic of the article.’” Structural Indus. v. United States, 29 CIT 180, 185, 360 F. Supp. 2d 1330, 1336 (2005) (citations omitted).
We disagree with protestant’s claim that the thermometer fork imparts the essential character of the grill set. The unit cost of the thermometer fork does not constitute an inordinate percentage of the total cost of the set. In terms of weight, the fork weighs about the same as the spatula and less than the tongs and the grill brush. In addition, the provided picture of the packaging does not show that the thermometer fork receives undue prominence compared to the other components of the set. The grill set is not marketed as a thermometer fork accompanied by other tools but rather as a four-piece BBQ set. The set contains three items used for grilling and one item, the grill brush, used for cleaning the grill. Amongst the three utensils used for grilling, while equally important to that task, two are wholly described by the terms of heading 8215, HTSUS, and the third, the thermometer fork, is partially described as a fork. Thus, the utensils of heading 8215, HTSUS, predominate by quantity, unit cost and net weight, and are the “most outstanding and distinctive characteristic” of the set. Hence, the utensils impart the essential character to the set under GRI 3(b).
This is consistent with the language in the HTSUS, the ENs, and prior CBP rulings. In
HQ 966615, dated March 9, 2004, CBP classified a “Harley-Davidson Barbecue and Apron Set” consisting of tongs, a two-tine fork, a spatula, and a textile bib apron in heading 8215, HTSUS, in subheading 8215.20.00, because it was determined that the three utensils, made of steel and with a wooden handle and used for the preparation of food, imparted the essential character. In
HQ 960223, supra, containing one ceramic jug, four chrome-plated metal utensils, three utensils made of nylon and a rubber scraper, and packaging, the chrome-plated metal utensils imparted the essential character since they were the most visually, numerically, and structurally significant components of the set. Similar to HQ 9666615 and HQ 960223, the instant set includes tongs and a spatula of heading 8215, which outnumber the thermometer fork and together have a greater weight and value, and are visually and structurally more significant than the thermometer fork. Thus, the tongs and the spatula impart the essential character to the grill set and as a result the entire set is classifiable in heading 8215, specifically under subheading 8215.20.00, HTSUS.
As the rate of duty for subheading 8215.20.00, HTSUS, is established by the rate of duty applicable to the article in the set subject to the highest rate of duty, we must first determine the tariff classification and corresponding rate of duty for each article in the set. Then, we apply the highest rate of duty to the entire set. See NY N014509, dated August 1, 2007 (classifying a BBQ set consisting of a spatula, tongs, three pronged forks, oven mitt, and an apron in
subheading 8215.20.00, at the rate of duty applicable to the article of the set that was subject to the highest rate of duty).
In the instant matter, in light of the fact that the merchandise was entered in 2016 and is not subject to Section 301 duties, the tariff classification and corresponding rate of duty for each article in the set is as follows:
Thermometer fork, subheading 9025.19.8080, HTSUSA, 1.3% rate of duty
Spatula, subheading 8215.99.5000, HTSUSA, 5.3% rate of duty
Tongs, subheading 8215.99.5000, HTSUSA, 5.3% rate of duty
Grill brush, subheading 9603.90.8050, HTSUSA, 2.8% rate of duty
Of these four components, the spatula and tongs are subject to the highest rate of duty (5.3%). In accordance with the terms of subheading 8215.20.00, HTSUS, the entire set is therefore subject to a rate of duty of 5.3%.
HOLDING:
By application of GRIs 1 and 6, and 3(b) and 5, the instant four-piece BBQ tool set from China is classified in heading 8215, HTSUS, specifically under subheading 8215.20.00, HTSUS, which provides for “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 column one, general rate of duty at the time of entry, for the spatula and the tongs, 5.3% ad valorem, under subheading 8215.99.50, HTSUS, is the highest rate of duty and will apply to the whole set (see supra note 5 at 6).
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided at https://hts.usitc.gov/current.
Since the rate of duty under the classification indicated above is the same as the liquidated rate, you are instructed to deny the Protest in full. A copy of this decision should be attached to the Form 19 Notice of Action.
Sixty days from the date of the decision, the Office of Trade, Regulations and Rulings will make the decision available to CBP personnel and to the public on the Customs Rulings Online Search System (“CROSS”), at https://rulings.cbp.gov/, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division