CLA-2 OT:RR:CTF:TCM H020453 KSH
J. Michael Taylor, Esq.
Elizabeth E. Duall, Esq.
King and Spalding LLP
1700 Pennsylvania Avenue, N.W.
Washington, DC 20006-4706
RE: Classification of pumpkin carving sets Dear Mr. Taylor and Ms. Duall:
This letter is in response to your request of November 8, 2007, on behalf of your client Signature Brands LLC, in which you requested a binding ruling pertaining to the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of four pumpkin carving kits. Your request has been forwarded by the National Commodity Specialist Division in New York to this office for a response. Samples of the pumpkin carving kits at issue were forwarded with your request. In reaching our decision, consideration was given to the meeting with members of my staff held on February 26, 2008.
FACTS:
The merchandise at issue is four styles of pumpkin carving kits. The first sample is identified as the “Casket Case”. It consists of two carving knives, a poker, seven paper stencils and a plastic scoop. The second sample is identified as the “Family Carving Kit.” It includes sixteen paper stencils, four carving knives, two plastic scoops, a drill, two pokers and three crayons. The third sample is identified as the “Quick Sticker & Carve” kit. It consists of 4 pages of self-adhesive stickers, a plastic scoop, a carving knife and a drill. The fourth sample is identified as the “Pumpkin Carving Kit.” It consists of twelve paper stencils, two carving knives, a plastic scoop, a drill and a pounce wheel.
ISSUE:
Whether the pumpkin carving kits are classified in heading 9505, HTSUS, as festive articles.
Whether the pumpkin carving kits are classified as GRI 3(b) sets.
LAW AND ANALYSIS:
Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification shall be determined according to the terms of the headings of the tariff schedule 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 may then be applied.
The Harmonized Commodity Description and Coding System Explanatory Notes (EN), constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the EN provide a commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the headings. It is Customs and Border Protection’s (CBP) practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUSA. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
Heading 9505, HTSUS, provides for “Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories therof.” Chapter Note 1(v) to Chapter 95, HTSUS, provides in relevant part:
This heading does not cover:
(v) Tableware, kitchenware, toilet articles, carpets and other textile floor coverings, apparel, bed linen, table linen, toilet linen, kitchen linen and similar articles having a utilitarian function (classified according to their constituent material).
The Explanatory Notes to Chapter 95, HTSUS, provide in relevant part:
The heading also excludes articles that contain a festive design, decoration, emblem or motif and have a utilitarian function, e.g., tableware, kitchenware, toilet articles, carpets and other textile floor coverings, apparel, bed linen, table linen, toilet linen, kitchen linen.
You contend that the utilitarian exception of Note 1(v) to Chapter 95, HTSUS, should not apply to items only having a holiday application. The meaning of “utilitarian” is plain and unambiguous. It is axiomatic in regard to the interpretation of statutory language that absent a "clearly expressed legislative intention to the contrary," a statute’s plain meaning "must ordinarily be regarded as conclusive." Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 64 L. Ed. 2d 766, 100 S. Ct. 2051 (1980). Glaxo Operations UK, Ltd. v. Quigg, 894 F.2d 392, 395 (Fed. Cir. 1990). There is no language in Note 1(v) to Chapter 95, HTSUS, which limits the scope of the term “utilitarian.” The pumpkin carving kits are designed, sold and marketed to carve a pumpkin. Thus, they have a utilitarian function. As such, even assuming arguendo that the pumpkin carving kits were festive, they are excluded from heading 9505, HTSUS, by Note 1(v) to Chapter 95.
As no provision in the HTSUS describes the pumpkin carving kits in their entirety, they cannot be classified according to GRI 1. When goods cannot be classified by applying GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI's are applied. GRI 2(a) states in pertinent part that:
Any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as entered, the incomplete or unfinished article has the essential character of the complete or finished article. It shall also include a reference to that article complete or finished (or falling to be classified as complete or finished by virtue of this rule), entered unassembled or disassembled.
The article is imported finished and complete, therefore GRI 2(a) does not
apply.
GRI 2(b) states, in pertinent part, that any reference in a heading to a material or substance shall be taken to include a reference to mixtures or combinations of that material or substance with other materials or substances. The classification of goods consisting of more than one material or substance shall be according to the principles of GRI 3.
GRI 3 states that 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.
The headings in which the various components of the pumpkin carving kits are classified only refer to part of the items put up for sale in the kits, thus GRI 3(b) must be applied. GRI 3(b) states:
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.
EN (X) to GRI 3(b) states 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 . . .;
(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).
In this instance, the various articles in the “Pumpkin Carving Kit”, “Family Carving Kit”, “Quick Sticker and Carve” kit and the “Casket Case” kit are put up together for a particular need or activity (i.e., carving a pumpkin). As such, they are classified as GRI 3(b) sets. As GRI 3(b) sets their classification is determined by the component that determines the essential character of each set. In accordance with HQ 966981, 967376, 967377, 967378 and 967379, all dated March 7, 2005, the component that imparts the essential character is the carving tool or carving knife. Thus, each kit is classified in heading 8211, HTSUS, or heading 8205, HTSUS.
We have determined that the “Pumpkin Carving Kit”, “Family Carving Kit”, “Quick Sticker and Carve” kit and the “Casket Case” kit are GRI 3(b) sets.
Alternatively, you argue that the pumpkin carving kits are classified in heading 8205, HTSUS, which provides for “Other handtools (including glass cutters) and parts thereof.” In support you cite to NY L89347, dated January 20, 2006, in which a pumpkin carving set consisting of two carving tools with steel blades, a plastic scoop and seven plastic stencils was classified in heading 8205, HTSUS. We have been advised by the National Commodity Specialist Division in New York that the carving tools are distinguishable from the carving knives at issue herein. You also cite to HQ 967378, dated March 7, 2005, in which a pumpkin carving kit containing, among other goods, a carving tool, was classified in heading 8205, HTSUS. We have been unable to locate a sample of the pumpkin carving kit at issue therein. As such, we cannot determine whether the carving tool at issue in HQ 967378 is substantially similar to the carving knives at issue herein.
The EN to heading 8205, HTSUS, provides in relevant part that heading
8205, HTSUS, "covers all hand tools not included in other headings of this
Chapter or elsewhere in the Nomenclature . . . .” Thus, to be classified in heading 8205, the carving knives must not be provided for elsewhere. In HQ 956076, dated October 21, 1994, we examined the common lexicographic definition for “knife.” The Random House Dictionary of the English Language, Unabridged Version (1973), defines knife as: Knife: 1. an instrument for cutting, consisting essentially of a thin, sharp-
edged, metal blade fitted with a handle. . . (p. 791).
Webster's Third New International Dictionary, Unabridged (1966), defines
knife as: Knife: 1 a: a simple instrument used for cutting consisting of a sharp-
edged usu. steel blade provided with a handle. . . (p. 1249).
The carving knives consist of a thin, sharp-edged serrated blade with a handle that is used to cut a design into a pumpkin. The carving knives comport with the common, lexicographic meaning of “knife.” As such, the carving knives are classified in heading 8211, HTSUS.
HOLDING:
Pursuant to GRI 3(b), the “Pumpkin Carving Kit”, “Family Carving Kit”, “Quick Sticker and Carve” kit and the “Casket Case” kit are classified in subheading 8211.92.4060, 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: Other knives having fixed blades: With rubber or plastic handles: Other: Other." The 2008 rate of duty is 1¢ each + 4.6% ad valorem.
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 on the World Wide Web at www.usitc.gov.
Sincerely,
Gail A. Hamill, Chief
Tariff Classification and Marking Branch