CLA-2 RR:CR:GC DBS
TARIFF NOS.: 3824.90.28; 3917.33.00; 3919.10.20; 3920.20.00; 3926.90.98; 4202.92.90; 4911.99.80; 6307.10.20; 7326.90.85; 8211.93.00; 8506.80.00; 8536.10.00; 9801.00.10
Mr. Juan Dominguez
Wal-Mart Stores, Inc.
702 SW 8th St.
Bentonville, AR 72716-0410
RE: Emergency Roadside Kits; GRI 3(b) sets
Dear Mr. Dominguez:
This is in response to your letter of January 3, 2001, to the Director, National Commodity Specialist Division, New York, requesting the classification of a “99 piece Emergency Roadside Kit” under the Harmonized Tariff Schedule of the United States (HTSUS). Your letter was referred to this office for reply. A sample was submitted. We regret the delay in responding.
FACTS:
The “99 piece Emergency Roadside Kit” (Stock # SDA178) consists of a 10’ battery booster cable, accident information guide, emergency thermal blanket, radiator water bag, 2 light sticks, 2 hose clamps, gas siphon, vinyl glove, a paper flag that reads “Emergency Help Call Police,” red shop towel, multi-function knife, flashlight, 2 D-size batteries, poncho, roll of radiator repair tape, 6 blade fuses, 27 cable nylon ties, flammable tire sealer and first aid kit, all packed inside a soft-sided plastic, reinforced, zippered bag with straps. The bagged is monogrammed with the words “Emergency Roadside Kit” and the triangular yellow symbol for emergencies. The kit is intended to be stored in a vehicle.
ISSUE:
Whether the “99 piece Emergency Roadside Kit” may be classified as goods put up in sets for retail sale.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that articles are to be classified by the terms of the headings and relative Section and Chapter Notes. For an article to be classified in a particular heading, the heading must describe the article, and not be excluded therefrom by any legal note. In the event that goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied.
There is a variety of merchandise at issue, classifiable in numerous headings. GRI 3 must be considered in the classification of merchandise put up in sets for retail sale. GRI 3(b) provides that:
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.
In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) may be utilized. 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. Customs believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
EN (X) to GRI 3(b) sets forth the following criteria for classification as goods put up in sets for retail sale. The merchandise must:
(a) 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;
(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).
The subject kit “consist[s] of at least two different articles which are, prima facie, classifiable in different headings,” and the kit is “put up in a manner suitable for sale directly to users without repacking.” However, the kit does not “consist of products or articles put up together to meet a particular need or carry out a specific activity.”
Customs has consistently maintained that a roadside emergency is not a particular need or specific activity. See HQ 083828, dated June 9, 1989; HQ 950678, dated December 30, 1991; HQ 950332, dated December 30, 1991; HQ 951092, dated February 11, 1992; HQ 951943, dated June 26, 1992. The exemplar sets in EN(X) fall within the meaning of GRI 3(b) because the items within the sets are related to one another in such a fashion that they interact together to serve a distinct purpose or function to enable a singular result to be achieved. For example, in EN(X)(2) hairdressing sets consisting of a pair of electric hair clippers, a pair of scissors, a brush and a towel, put up in a leather case, are sets within the meaning of 3(b) because all of the items are used in concert to achieve groomed hair.
The goods at issue do not interact together to meet a particular need or carry out a specific activity. Rather, the items remedy a variety of automobile and other roadside emergencies and only a few of the items may be used in concert. A flat tire would require the use of no more than three of the items in the kit, i.e., the tire sealer, poncho (if its raining), flashlight and batteries (if needed for visibility). A dead car battery would require the booster cables. The first aid kit can be used for various things (a bee sting, a cut, a blister), but would not be used while siphoning gas. There are numerous needs fulfilled by this kit, but no one particular need. Therefore, the kit is not classifiable as goods put up in a set for retail sale. Accordingly, each item must be classified individually.
HOLDING:
The articles contained in the “99 piece Emergency Roadside Kit” are classified as follows:
The first aid kit and the flammable tire sealer are made in the U.S. and merely packaged abroad with the other items. These two items are entitled to duty-free treatment in subheading 9801.00.10, HTSUS, provided the documentation requirements of section 10.1, Customs Regulations (19 CFR 10.1), are met. Otherwise, the first aid kit is classifiable in subheading 3006.50.00, HTSUS, as first-aid boxes and kits. The applicable subheading for the tire sealer is 3824.90.91, HTSUS, which provides for “Prepared binders for foundry molds or cores, chemical products and preparations of the chemical or allied industries..., not elsewhere specified or included: other: other: other: other: other.
The battery booster cable is classifiable in subheading 8544.41.8000, HTSUS the provision for “Insulated (including enameled or anodized) wire, cable (including coaxial cable) and other insulated electric conductors, whether or not fitted with connectors; optical fiber cables, made up of individually sheathed fibers, whether or not assembled with electric conductors or fitted with connectors: other electric conductors, for a voltage not exceeding 80 V: fitted with connectors: other.”
The accident information guide is classifiable in subheading 4901.10.0040, HTSUS, the provision for “Printed books, brochures, leaflets and similar printed matter, whether or not in single sheets: In single sheets, whether or not folded: other.”
The emergency blanket is classifiable in subheading 3920.20.0000, which provides for “Other plates, sheets, film, foil and strip, of plastics, noncellular and not reinforced, laminated, supported or similarly combined with other materials: of polymers of propylene.”
The radiator water bag is classifiable in subheading 3926.90.98, which provides for “Other articles of plastics and articles of other materials of headings 3901 to 3914: Other: Other”
The light sticks are classifiable in subheading 3824.90.28, HTSUS, the provision for, “Prepared binders for foundry molds or cores; chemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included; residual products of the chemical or allied industries, not elsewhere specified or included: other: other: mixtures containing 5 percent or more by weight of one or more aromatic or modified aromatic substances: other.”
The hose clamps are classifiable in subheading 7326.90.85, HTSUS, which provides for “Other articles of iron or steel: other: other.”
The gas siphon is classifiable in subheading 3917.33.00, HTSUS, which provides for “Tubes, pipes and hoses and fittings therefor (for example, joints, elbows, flanges), of plastics: other tubes, pipes and hoses: other, not reinforced or otherwise combined with other materials, with fittings.”
The pair of vinyl gloves is classifiable in subheading 3926.20.40, HTSUS, which provides for “Other articles of plastics and articles of other materials of heading 3901 to 3914: Articles of apparel and clothing accessories (including gloves): gloves: other: other.”
The paper “Emergency Help Call Police” flag is classifiable in subheading 4911.99.80, which provides for “Other printed matter, including printed pictures and photographs: other: other: other.”
The red shop towel is classifiable is subheading 6307.10.20, HTSUS, which provides for “Other made up articles, including dress patterns: Floor-cloths, dish-cloths, dusters and similar cleaning cloths: other: shop towels dedicated for use in garages, filling stations and machine shops.”
The multi-functional pocket utility knife is classifiable in subheading 8211.93.00, HTSUS, which provides for “Knives with cutting blades, serrated or not (including pruning knives), other than knives of heading 8208, and blades and other base metal parts thereof: other: knives having other than fixed blades.”
The flashlight is classifiable in subheading 8513.10.20, HTSUS, which provides for “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: Lamps: Flashlights.”
The D-size batteries are classifiable in subheading 8506.80.00, HTSUS, which provides for “Primary cells and primary batteries; parts thereof: other.”
The polyethylene poncho is classifiable in subheading 3926.20.90, HTSUS, which provides for “Other articles of plastics and articles of other materials of headings 3901 to 3914: Articles of apparel and clothing accessories (including gloves): other: other.”
The roll of radiator repair tape is classifiable in subheading 3919.10.20, HTSUS, which provides for “Self-adhesive plates, sheets, film, foil, tape, strip and other flat shapes, of plastics, whether or not in rolls: In rolls of a width not exceeding 20 cm: other.”
The blade fuses are classifiable in subheading 8536.10.00, HTSUS, which provides for “Electrical apparatus for switching or protecting electrical circuits, or for making connections to or in electrical circuits (for example, switches, relays, fuses, surge suppressors, plugs, sockets, lamp-holders, junction boxes), for a voltage not exceeding 1,000 V: fuses.”
The cable nylon ties are classifiable in subheading 3926.90.98, HTSUS, which provides for “Other articles of plastics and articles of other materials of heading 3901 to 3914: other: other.”
The soft-sided case that houses the kit is classifiable in subheading 4202.92.90, HTSUS, which provides for “ 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: other: other: other.”
Sincerely,
John Durant, Director
Commercial Rulings Division