CLA-2 CO:R:C:M 950627 LTO
Mrs. Mary Anne O'Boyle
Hoglund & Moyles, Inc.
Post Office Box 66373
O'Hare International Airport
Chicago, Illinois 60666
RE: Glue Guns; Glue; GRI 3(b) ["sets"]; EN to GRI 3(b); DD
867186 revoked; 3506.10.50; 8205.59.55; EN 82.05; EN 85.16
Dear Mrs. O'Boyle:
This is in reference to DD 867186, a ruling issued to you by
the District Director of Customs in San Diego, California, on
September 26, 1991, concerning the tariff classification of a
Trigger Glue Gun under the Harmonized Tariff Schedule of the
United States (HTSUS). This ruling is a reconsideration of DD
867186.
FACTS:
The article subject to this reconsideration is a Trigger
Glue Gun. The glue gun, along with two sticks of glue, is
packaged in a plastic, blister-type pack for retail sale to home
hobbyists. According to the packaging, a glue stick is inserted
through a tunnel in the back of the gun. The gun can then be
plugged into either a 110 or 220 volt electrical outlet, which
warms and softens the glue stick so that it will flow from the
nozzle. The packaging states that the guns can be used for a
variety of household uses. Pictures show the gun being used to
fix toys and glue shells and flowers. The packaging further
states that the guns are perfect for decorations, toys and
models, furniture, woodworking, flooring and baseboards and
artificial flowers.
In DD 867186, the glue gun and the glue were said to be
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classified separately in the following provisions: (1) the glue
gun was found classifiable under subheading 8205.59.55, HTSUS,
which describes other handtools; and (2) the glue was found to be
classifiable under subheading 3506.10.50, HTSUS, which describes
prepared glues and other prepared adhesives. We have considered
classification of the glue gun under Heading 8516, HTSUS, which
provides for other portable, electrothermic domestic appliances,
and classification of the glue gun and the glue together as a
"set" according to GRI 3(b).
ISSUE:
1. Whether the glue guns are classifiable as handtools under
Heading 8205, HTSUS, or as domestic, electrothermic appliances
under Heading 8516, HTSUS.
2. Whether the glue gun and glue, which are packaged in a
plastic, blister-type pack, are classifiable as a "set" under the
HTSUS.
LAW AND ANALYSIS:
The General Rules of Interpretation (GRI's) to the HTSUS
govern the classification of goods in the tariff schedule. GRI 1
states in pertinent part that "for legal purposes, classification
shall be determined according to the terms of the headings and
any relative section or chapter notes . . . ."
Regarding the first issue, the competing headings are as
follows: Heading 8205, HTSUS, which provides for "[h]andtools
. . . not elsewhere specified or included," and Heading 8516,
HTSUS, which provides for "other electrothermic appliances of a
kind used for domestic purposes . . . ."
The Harmonized Commodity Description and Coding System
Explanatory Notes (EN) constitute the Customs Co-operation
Council's official interpretation of the Harmonized System.
While not legally binding, they provide a commentary on the scope
of each note and heading of the Harmonized System, and are thus
useful in ascertaining classification under the System.
EN 82.05, pg. 1107, states that Heading 8205, HTSUS, "covers
all hand tools not included in other headings of this Chapter or
elsewhere in the Nomenclature . . ., together with certain other
tools or appliances specifically mentioned in the title [emphasis
in original]." Because the glue gun is not specifically
mentioned in Heading 8205, HTSUS, it is necessary to determine if
the article is included elsewhere in the
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Nomenclature.
EN 85.16, pg. 1359, states that Heading 8516, HTSUS,
"includes all electro-thermic machines and appliances provided
they are normally used in the household [emphasis in original],"
such as, hair dryers, microwave ovens, coffee or tea makers,
toasters, plate warmers, face dryers, bed warmers, bottle
heaters, jacketed urns for heating milk, soup or the like, and
perfume or incense heaters. The glue gun is an electrothermic
appliance that is normally used in the household for making
decorations, and fixing toys, models, furniture and woodworking.
Thus, we find that the holding in DD 867186 was incorrect. The
glue gun is classifiable under subheading 8516.79.00, HTSUS,
which provides for "other electrothermic appliances of a kind
used for domestic purposes . . . [o]ther electrothermic
appliances . . . [o]ther."
Regarding the second issue, in DD 867186, the glue was said
to be classified separately under subheading 3506.10.50, HTSUS,
which provides for "[p]repared glues and other prepared
adhesives, not elsewhere specified or included; products suitable
for use as glues or adhesives, put up for retail sale as glues or
adhesives, not exceeding a net weight of 1 kg . . . [p]roducts
suitable for use as glues or adhesives . . . [o]ther." The glue
is prima facie classifiable under Heading 3506, HTSUS, and the
glue gun is prima facie classifiable under Heading 8516, HTSUS.
GRI 3(b) states that "[w]hen, by the 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:
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
[underlining added]."
The Explanatory Notes to GRI 3(b), pg. 4, state 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 . . .;
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(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) [emphasis in
original]."
The articles in question meet part (a) of the above stated
test, as the glue guns and the glue are classifiable in separate
headings. The articles also meet part (b) of the test--the glue
gun and the glue are packaged together in a plastic, blister-
type pack and they are used to carry out a specific activity.
Finally, the articles meet part (c) of the test, as the goods are
suitable for direct sale without repacking.
Because the articles are "goods put up in sets for retail
sale," it is necessary to determine which component--the glue gun
or the glue--gives the set its essential character. Essential
character may 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
to GRI 3(b), pg. 4. All of these factors support a finding that
the essential character of the set is represented by the glue
gun. Thus, the set is classifiable under subheading 8516.79.00,
HTSUS.
HOLDING:
The glue gun and the glue are classifiable in subheading
8516.79.00, HTSUS, which provides for "other electrothermic
appliances of a kind used for domestic purposes . . . [o]ther
electrothermic appliances . . . [o]ther." The corresponding rate
of duty for articles of this subheading is 5.3% ad valorem.
EFFECT ON OTHER RULINGS:
This notice to you should be considered a modification of DD
867186, dated September 26, 1991, under section 177.9(d) of the
Customs Regulations [19 CFR 177.9(d)]. It is not to be applied
retroactively to DD 867186 [19 CFR 177.9(d)(2)], and will not,
therefore, affect past transactions for the importation of the
merchandise under that ruling. However, for the purposes of
future transactions involving merchandise of this type, DD 867186
will not be valid precedent. We recognize that pending
transactions may be adversely affected by this modification, in
that current contracts for importations arriving at a port
subsequent to this decision will be classified pursuant to it.
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If such a situation arises, you may, at your discretion, notify
this office and apply for relief from the binding effects of this
decision as may be warranted by the circumstances.
Sincerely,
John Durant, Director
Commercial Rulings Division
cc: District Director, San Diego
Chief, NIS Division, Branch 1, New York Seaport