CLA-2 OT:RR:CTF:TCM H022164 RES
9609.10.0000
Mr. Christopher Smith
Customs Compliance Specialist
IKEA Wholesale Inc.
100 Ikea Drive
Westhampton, NJ 08060
RE: Reconsideration of New York Ruling Letter N018805, dated November 16, 2007; classification of a FIXA 8-piece tool set.
Dear Mr. Smith:
This is in response to Ikea’s letter dated January 16, 2008, for reconsideration of New York Ruling Letter (“NY”) N018805, dated November 16, 2007. In NY N018805, U.S. Customs and Border Protection (“CBP”) classified an 8-piece tool set under headings 4016, 4202, 8202, 9017, 9031, and 9609, Harmonized Tariff Schedule of the United States (“HTSUS”). CBP has determined that NY N018805 is correct.
FACTS:
The merchandise at issue in this reconsideration is marketed and sold to consumers as the “FIXA 8-piece tool set” (“the FIXA”). From an examination of the sample provided, CBP notes that the FIXA consists of 8 pieces, which include four 3.5” sharpened pencils, one six-foot retractable tape measure, a handsaw with an approximately 13” blade, a 9” level, and a 9.75” long rubber mallet with a 3” rubber mallet head. The 8 items of the kit are sold packaged in an orange molded plastic container. The following facts were set forth in NY N018805:
You state, “The tool set is contained in an attractive plastic case that fits each of the articles of the set. . . . . The tool set is intended to be sold to the customer to assist them in the assembly, maintenance, or even mounting of their furniture or home furnishings.” The tool box is specially shaped and fitted for each of the items noted below.
Per NISA A. Grossi’s recent telephone call to you, you gave examples of the uses of the items in the kit in using the rubber mallet to assemble “lock together” laminate flooring, the level and tape measure to hang a picture, and the saw to trim mold, railings or curtain rods.
Ikea requested on October 18, 2007, a tariff classification ruling for the FIXA. In response, CBP issued NY N018805 classifying each item individually and not as a tool set. The items were classified in the following subheadings: the plastic case was classified as a container under subheading 4202.99.90, HTSUS; the rubber mallet was classified as articles of vulcanized rubber under subheading 4016.99.60, HTSUS, if synthetic rubber or under subheading 4016.99.35, HTSUS, if natural rubber; the measuring tape was classified as an instrument for measuring length under subheading 9017.80.00, HTSUS; the level was classified as a checking instrument under subheading 9031.80.80, HTSUS; and lastly, the four small pencils were classified as pencils under subheading 9609.10.00, HTSUS.
Ikea filed a request for reconsideration of NY N018805 asserting that the merchandise is classified as a set under heading 8202, HTSUS, within the meaning of the tariff.
ISSUE:
Whether the FIXA 8-piece tool set is considered to be a set for classification purposes under the General Rule of Interpretation 3(b), HTSUS?
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be “determined according to the terms of the headings and any relative section or chapter notes.” In the event that the goods cannot be classified solely on the basis of GRI 1 and if the headings and legal notes do not otherwise require, the remaining GRI 2 through 6 may be applied in order.
In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System, which constitute the official interpretation of the HTSUS at the international level, 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 HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The HTSUS headings under consideration in this case are as follows:
4016 Other articles of vulcanized rubber other than hard rubber:
4202 Trunks, suitcases, vanity cases, attaché cases, briefcases, school satchels, spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters and similar containers; traveling bags, insulated food or beverage 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:
8202 Handsaws, and metal parts thereof; blades for saws of all kinds (including slitting, slotting or toothless saw blades), and base metal parts thereof:
9017 Drawing, marking-out or mathematical calculating instruments (for example, drafting machines, pantographs, protractors, drawing sets, slide rules, disc calculators); instruments for measuring length, for use in the hand (for example, measuring rods and tapes, micrometers, calipers), not specified or included elsewhere in this chapter; parts and accessories thereof:
9031 Measuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter; profile projectors; parts and accessories thereof:
9609 Pencils (other than those pencils of heading 9608), crayons, pencil leads, pastels, drawing charcoals, writing or drawing chalks and tailors’ chalks:
The FIXA is composed of numerous different articles. Analyzing the FIXA first under GRI 1, there is no specific provision in the HTSUS that completely describes this product. Likewise, the FIXA is not classifiable under GRI 2(a) or 2(b) because the article is not in an unassembled or incomplete state, but is imported as a complete article and is a mixture of goods which are classifiable under two or more headings. GRI 2(b) instructs that “[t]he classification of goods consisting of more than one material or substance shall be [determined] according to the principles of rule 3.”
GRI 3(a) does not apply because there is no heading that provides a specific description that clearly identifies an article like the FIXA that is a composite of tools that include a level, measuring tape, handsaw, rubber mallet, and pencils. However, GRI 3(b) may apply, because the FIXA is a composite good consisting of different articles each of which, if imported separately, would be classifiable under different headings. According to GRI 3(b), “mixtures . . . 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 . . . .” However, for a composite article to be analyzed pursuant to GRI 3(b) as a “set,” it must meet the requirements of EN (X) to GRI 3(b), which state in pertinent part:
* * * * *
(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. Therefore, for example, six fondue forks cannot be regarded as a set within the meaning of this Rule;
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 users without repacking (e.g., in boxes or cases or on boards).
Examples of sets which can be classified by reference to Rule 3 (b) are:
(1) (a) Sets consisting of a sandwich made of beef, with or without cheese, in a bun (heading 16.02), packaged with potato chips (French fries) (heading 20.04): Classification in heading 16.02.
(b) Sets, the components of which are intended to be used together in the preparation of a spaghetti meal, consisting of a packet of uncooked spaghetti (heading 19.02), a sachet of grated cheese (heading 04.06) and a small tin of tomato sauce (heading 21.03), put up in a carton: Classification in heading 19.02.
The Rule does not, however, cover selections of products put up together and consisting, for example, of:
a can of shrimps (heading 16.05), a can of pâté de foie (heading 16.02), a can of cheese (heading 04.06), a can of sliced bacon (heading 16.02), and a can of cocktail sausages (heading 16.01); or
bottle of spirits of heading 22.08 and a bottle of wine of heading 22.04.
In the case of these two examples and similar selections of products, each item is to be classified separately in its own appropriate heading.
(2) Hairdressing sets consisting of a pair of electric hair clippers (heading 85.10), a comb (heading 96.15), a pair of scissors (heading 82.13), a brush (heading 96.03) and a towel of textile material (heading 63.02), put up in a leather case (heading 42.02): Classification in heading 85.10.
(3) Drawing kits comprising a ruler (heading 90.17), a disc calculator (heading 90.17), a drawing compass (heading 90.17), a pencil (heading 96.09) and a pencil sharpener (heading 82.14), put up in a case of plastic sheeting (heading 42.02): Classification in heading 90.17.
* * * * *
The FIXA meets the requirements in EN(X)(a) in that it is composed of five different articles which are, prima facie, classifiable in different headings and meets the requirements in EN(X)(c) in that the FIXA is sold directly to users without repacking. Thus, the threshold issue is whether the FIXA meets the requirement of EN(X)(b) by meeting a particular need or carrying out a specific activity.
Ikea first asserts that the FIXA meets the requirement of EN(X)(b) because all the tools could be used in the specific activity of installing a laminate floor. In fact, Ikea sells a separate laminate floor laying kit that does not include any of the tools that are in the FIXA. Ikea markets this kit as “[a] practical all-in-one set for laying laminate and wooden flooring.” Ikea does not market the FIXA in similar fashion and most importantly, the FIXA lacks key tools and items that are in the separate floor laying kit: spacers, a pull bar for pulling floor boards tight, and a rubber tapping block. Thus, the FIXA is not an article that is for the specific activity of installing a laminate floor.
Ikea then argues in the alternative that the FIXA meets the requirement of EN(X)(b) because it allows a user to perform the particular need/specific activity of home repair and improvement work. Ikea asserts in its memo that the items in the kit can be used together in a variety of activities such as using the rubber mallet in the installation of a laminate floor, the level and tape measure in the hanging of a picture, and the saw to cut molding, railings, or curtain rods. Although these examples of activities are things that could be performed around the home using the tools in the FIXA, these activities do not have any recognizable “specificity” between them beside the fact that they are simply general activities done in and around the home.
In contrast, in the exemplar sets set forth in EN(X) that fall within the meaning of GRI 3(b), those sets were indeed geared toward a specific and particular activity. The items in examples one and two are used in conjunction with one another to complete the specific singular activity of creating a sandwich meal or preparing a spaghetti meal. The hairdressing sets in the third example were composed of articles, which interacted with each other to carry out the particular activity of cutting and trimming hair. Lastly, the drawing kits in example four were composed of instruments, which interacted with each other to carry out the specific activity of creating a drawing.
Likewise, in HQ 084717, dated September 13, 1989, an exampled cited by Ikea, the article at issue was a tool box/storage cabinet kit, which included various tools geared toward work on electrical related repairs and projects. CBP concluded that this was a set for GRI 3(b) because electrical/mechanical work was determined to be a type of specific activity to meet the EN(X)(b) requirement and that the kit included many tools that were specially designed to work on electrical related repairs and projects.
In comparison to the general activity that the FIXA is meant to address, the particular needs/activities in the examples in EN(X) and in HQ 084717 are more narrowly focused on a certain activity/need than Ikea’s asserted home repair and improvements activity of the FIXA. See NY F88782, dated July 19, 2000 (classifying as a set within the meaning of GRI 3(b) a gardening kit composed of tools and other items used in the specific activity of gardening); HQ 964539, dated November 21, 2001 (finding that a kit consisting of various plates, cups, corkscrew, and other utensils contained in a backpack was a set used in the specific activity of picnicking). Furthermore, the items in the FIXA do not interact/act in concert for a common specific activity. See HQ 562628, dated April 10, 2003 (finding that a “Hummer Tool Kit” was not a set because the components—flashlight, multi-purpose toolkit, and tire pressure gauge—did not act in concert to met a particular need or carry out a specific activity). There is no common thread between the activities of hanging a picture, assembling furniture, cutting stuff, etc, such that these activities could be categorized in some overarching specific activity.
In summary, assembling an assortment of basic tools for the FIXA does allow for many general uses of tools in various activities. However, the various activities the components of the FIXA are alleged to perform are simply an amalgamation of unrelated activities under the general umbrella descriptor of home repair and improvements. Because the components of the FIXA do not address a particular need or specific activity, the FIXA does not meet the requirement in EN(X)(b) and is not considered a set under GRI 3(b).
Therefore, upon reconsideration CBP has determined that the classification in NY N018805 of the FIXA tool kit based on its individual components and not as a GRI 3(b) set is correct.
HOLDING:
Pursuant to GRI 1, the rubber mallet is classified under subheading 4016.99.3500, HTSUSA, which provides for “[o]ther articles of vulcanized rubber other than hard rubber: [o]ther: [o]ther: [o]ther: [o]f natural rubber: [o]ther.” The 2011 general, column one, rate of duty is free.
Pursuant to GRI 1, the plastic case is classified under subheading 4202.99.9000, HTSUSA, which provides for “[t]runks, suitcases, vanity cases, attaché cases, briefcases, school satchels, spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters and similar containers; traveling bags, insulated food or beverage 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: [o]ther: [o]ther: [o]ther.” The 2011 general, column one, rate of duty is 20 percent, ad valorem.
Pursuant to GRI 1, the metal handsaw is classified under subheading 8202.10.0000, HTSUSA, which provides for “[h]andsaws, and metal parts thereof; blades for saws of all kinds (including slitting, slotting or toothless saw blades), and base metal parts thereof: [h]andsaws, and parts (except blades) thereof.” The 2011 general, column one, rate of duty is free.
Pursuant to GRI 1, the measuring tape is classified under subheading 9017.80.0000, HTSUSA, which provides for “[d]rawing, marking-out or mathematical calculating instruments (for example, drafting machines, pantographs, protractors, drawing sets, slide rules, disc calculators); instruments for measuring length, for use in the hand (for example, measuring rods and tapes, micrometers, calipers), not specified or included elsewhere in this chapter; parts and accessories thereof: [o]ther instruments.” The 2011 general, column one, rate of duty is 5.3 percent, ad valorem.
Pursuant to GRI 1, the level is classified under subheading 9031.80.8085, HTSUSA, which provides for “[m]easuring or checking instruments, appliances and machines, not specified or included elsewhere in this chapter; profile projectors; parts and accessories thereof: [o]ther instruments, appliances and machines: [o]ther: [o]ther.” The 2011 general, column one, rate of duty is 1.7 percent, ad valorem.
Pursuant to GRI 1, the four small wooden pencils are classified under subheading 9609.10.0000, HTSUSA, which provides for “[p]encils (other than those pencils of heading 9608), crayons, pencil leads, pastels, drawing charcoals, writing or drawing chalks and tailors’ chalks: [p]encils and crayons, with leads encased in a rigid sheath.” The 2011 general, column one, rate of duty is 14 cents/gross plus 4.3 percent, ad valorem.
Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov/tata/hts/.
EFFECTS ON OTHER RULINGS:
NY N018805, dated November 16, 2007, is AFFIRMED.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division