CLA-2 OT: RR: CTF: TCM H266149 ERB
Port Director
Port of Los Angeles/Long Beach Seaport
U.S. Customs and Border Protection
301 E. Ocean Blvd., Suite 1400
Long Beach, CA 90802
Attn: Olga Galvan, Import Specialist
RE: Further Review of Protest Number 2704-15-100329; Tariff classification of the Curtis Stone “Chop Chop” Deluxe Food Chopper
Dear Port Director:
This is in response to the Application for Further Review(AFR) of Protest Number 2704-15-100329, dated March 5, 2015, timely filed C.H. Robinson Freight Services on behalf of HSNi LLC (HSNi). The AFR concerns U.S. Customs and Border Protection’s (CBP) classification of two entries of the Curtis Stone “Chop Chop” Deluxe Food Chopper under the Harmonized Tariff Schedule of the United States (HTSUS). One sample was provided to this office and is being returned with our decision.
FACTS:
There are two entries at issue here, and Protest Number 2704-15-100329 has been designated as the lead protest. The entry associated with this protest entered the United States on February 28, 2014, with the goods classified under subheading 8205.51.3030, HTSUSA (Annotated), which provides for, “Handtools (including glass cutters) not elsewhere specified or included; blow torches and similar self-containing torches; vises, clamps and the like other than accessories for and parts of machine tools; anvils; portable forges; hand- or pedal-operated grinding wheels with frameworks; base metal parts thereof: Other handtools (including glass cutters) and parts thereof: Household tools, and parts thereof: Of iron or steel: Other (including parts): Kitchen and table implements.”
Subsequently, on September 30, 2014, C.H. Robinson submitted a new CBP Form 7501 (Entry Summary), purportedly to correct an error in the original filing. Therein, C.H. Robinson argued that the most appropriate tariff classification for the “Chop Chop” Deluxe Food Chopper was subheading 7323.93.0060, HTSUSA, which provides for, “Table, kitchen or other household articles and parts thereof, of iron or steel; iron or steel wool; pot scourers and scouring or polishing pads, gloves and the like, of iron or steel: Other: Of stainless steel: Kitchen ware.” CBP liquidated the subject merchandise on February 20, 2015, classified under subheading 8210.00.0000, HTSUS, which provides for, “Hand-operated mechanical appliances, weighing 10 kg or less, used in the preparation, conditioning or serving of food or drink, and base metal parts thereof.”
Curtis Stone is a celebrity chef from Australia. His extensive line of kitchen appliances, wares, and gadgets are sold exclusively through the Home Shopping Network (HSN). The subject merchandise is called the “Chop Chop” Deluxe Food Chopper. It is a device designed to prepare food in a variety of ways, including chopping, slicing, shredding, coring, grating, and juicing, by means of the interchangeable blades. It is imported in its condition ready for retail sale and is packaged with the following: a base, apple blade, tomato blade, apple/tomato pusher, potato blade, potato pusher, mandolin, grater frame, coarse grater, fine grater, hand guard, drawer with lid, and an instruction guide with chopping chart.
Essentially, users pick from the included blades depending on the item the user wishes to slice, or the shape the user wants his or her food in, and inserts the blade into the lid. Users then place an article of food on top of the blade and firmly pushes down with both hands on the plunger. As the plunger is lowered onto the food, it pushes the food through the blade which falls into the clear plastic drawer or catch basin underneath. This would result in, for example, a cored apple or a diced potato. Alternately, if the user chooses the mandolin blade or the shredder blade, the user installs the blade in the lid and runs the food overtop of the blade, causing the food (e.g. vegetable or cheese) to fall into the catch basin. The “Chop Chop” Chopper measures approximately 8 ½ inches in length, 6 inches wide and 7 inches tall. The interchangeable blades are made of stainless steel, with plastic handles. The lid, including plunger, and catch basin are made of plastic or thermoplastic rubber.
ISSUE:
Whether the subject food chopper consisting of plastic parts and stainless steel blades is a kitchen article of heading 7323, HTSUS, a handtool of heading 8205, or a hand-operated mechanical appliance used in the preparation of food, of heading 8210, HTSUS.
LAW AND ANALYSIS:
Initially, we note that the matter protested is protestable under 19 U.S.C. § 1514(a), as a decision on classification. The protest was timely filed, within 180 days of liquidation for entries made on or after December 18, 2004. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub. L. 108 – 429 § 2103 (2) (B) (ii), (iii) (codified as mended at 19 U.S.C. § 1514 (c)(3)(2006)).
Further Review of Protest Number 2704-15-100329 is properly accorded to the Protestant pursuant to 19 C.F.R. § 174.24(a), because the AFR alleges that the tariff classification indicated by Customs was inconsistent with a previous ruling issued by CBP. Specifically, HSNi argues that the subject merchandise was classified and liquidated in contravention to the rationale contained in New York Ruling Letter (NY) N23811, issued to HSNi on February 19, 2013.
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 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 GRIs may then be applied. The HTSUS classification headings under consideration are as follows:
7323 Table, kitchen or other household articles and parts thereof, of iron or steel; iron or steel wool; pot scourers and scouring or polishing pads, gloves and the like, of iron or steel:
7323.93 Other:
7323.93.00 Of stainless steel
8205 Handtools (including glass cutters) not elsewhere specified or included; blow torches and similar self-contained torches; vises, clamps and the like, other than accessories for and parts of machine tools; anvils; portable forges; hand- or pedal-operated grinding wheels with frameworks; base metal parts thereof:
Other handtools (including glass cutters) and parts thereof:
8205.51 Household tools, and parts thereof:
Of iron or steel:
8205.51.30 Other
8210.00.00 Hand-operated mechanical appliances, weighing 10 kg or less, used in the preparation, conditioning or serving of food or drink, and base metal parts thereof:
When interpreting and implementing the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. While neither legally binding nor dispositive, the ENs provide a guiding 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. 35128 (Aug. 23, 1989).
The EN to 73.23 (A) Table, Kitchen or Other Household Articles and Parts Thereof, states, in relevant part:
This group comprise a wide range of iron or steel articles, not more specifically covered by other headings of the Nomenclature, used for table, kitchen or other household purposes…
It further states:
The heading excludes:
(d) Household articles having the character of tools, e.g., shovels of all kinds; cork-screws; cheese graters, etc.; larding needles; can –openers; nut-crackers; bottle openers; curling irons, pressing irons; fire-tongs; egg whisks; waffling irons; coffee-mills, pepper-mills; mincers; juice extractors, vegetable pressers, vegetable mashers (Chapter 82).
The General EN to Chapter 82, which covers tools and implements of base metal states the following in relevant part:
This Chapter includes:
(D) Articles of cutlery (whether intended for professional, personal or domestic use), certain mechanical domestic appliances, spoons and forks and similar tableware and kitchen utensils (heading 82.10 to 82.15).
In general, the Chapter covers tools which can be used independently in the hand, whether or not they incorporate simple mechanisms such as gearing, crank-handles, plungers, screw mechanisms or levers.
The EN 82.05 states, in relevant part:
This heading cover all hand tools not included in other headings of this Chapter or elsewhere in the Nomenclature (see the General Explanatory Notes to this Chapter [above]), together with certain other tools or appliances specifically mentioned in the title.
It includes a large number of hand tools (including some with simple hand-operated mechanisms such as cranks ratchets or gearing). This group of tools includes…
(E) Other hand tools (including glaziers’ diamonds).
This group includes:
A number of household articles, including some with cutting blades but not including mechanical types (see the Explanatory Note to heading 82.10), having the character of tools and accordingly not proper to heading 73.23…
The EN to 82.10 states, in relevant part:
This heading covers non-electric mechanical appliances, generally hand-operated, not exceeding 10 kg in weight, used in the preparation, serving or conditioning of food or drink.
For the purposes of this heading an appliance is regarded as mechanical if it has such mechanisms as crank-handles, gearing, Archimedean screw-actions, pumps, etc.; a simple level or plunger action is not in itself, however regarded as a mechanical feature involving classification in this heading unless the appliance is designed for fixing to a wall or other surface, or is fitted with base plates, etc. for standing on a table, on the floor, etc.
The heading thus comprises appliances which would fall either in heading 82.05 or in Chapter 84 but for the fact that they fulfill the following conditions:
They weight 10 kg or less.
They have the mechanical features described.
The following are examples of goods falling in the heading, provided they conform to the conditions set out above:
Coffee or spice mills; vegetable mincers and mashers; meat mincers and slicers; meat pressers; graters for cheese, etc.; vegetable or fruit slicers, cutters and peelers, …
The Courts have spoken on the scope of heading 8205, HTSUS, stating, “[h]and tools have been held to include any tool which is held and operated by the unaided hand.” See F.B. Vandegrift & Co. v. United States, 65 Cust. Ct. 260, 266 (Cust. Ct. 1970), citing Hollywood Accessories, Division of Allen Electronics & Equip. Co. v. United States, 60 Cust. Ct. 260, C.D. 3391, 282 F. Supp. 299 (1968); P.H. De Wilde and Harper, Robinson & Co. v. United States, 35 Cust. Ct. 295 Abstract 59420 (1955). See also HQ H020853, dated July 15, 2010. Inasmuch as the “Chop Chop” chopper rests on a flat surface, such as a countertop when in use, it is not hand-held. The act of pressing down on the plunger by the user does not transform this product into a hand-held tool. Thus it is not a hand tool of heading 8205, HTSUS.
The “Chop Chop” chopper is described as a non-electric hand operated mechanical appliance fitted with a base plate for standing on a table or flat surface, for personal or domestic use. It is comprised of the base plate, a plunger, and interchangeable attachments that include various interchangeable stainless steel blades. It is designed and recommended for chopping, slicing, dicing, juicing, and grating of fruits, vegetables and cheese. In other words, for the preparation of food. As such, it meets the tariff terms of subheading 8210.00.00, HTSUS.
This comports with previous Customs rulings classifying similar goods. See NY N165115, dated May 20, 2011, and NY 883726, dated March 17, 1993. Additionally, classification of a good described as a non-electric hand operated mechanical appliance fitted with a base plate for standing on a table or flat surface, for personal or domestic use, which grates, slices, cuts and peels, in subheading 8201.00.00, HTSUS, comports with the EN to 82.10 which provides that graters for cheese, vegetable or fruit slicers, cutters and peelers are examples of goods provided for therein.
This also means, that as the goods are provided for in subheading 8210.00.00, HTSUS, then the goods are not classified in heading 7323, HTSUS, which is a residual provision for goods not more specifically covered by other headings of the Nomenclature. See also EN 73.23 subsection (A) Table, Kitchen or Other Household Articles and Parts Thereof.
HSNi argues that the subject “Chop Chop” chopper should be classified alongside the “Bon Appettit [sic] V-Mandolin” which was the subject of NY N238211. The mandolin consisted of three interchangeable stainless steel blades, a plastic body, hand guard and pusher and holder with spikes to hold the fruit or vegetable while cutting. Users secured the food with the holder with spikes, and run the food along the top of the blades to produce sliced or cut food. However, the mandolin did not have any mechanical operation associated with it. There is nothing analogous to the plunger, which the “Chop Chop” chopper features. Though the mandolin blades are adjustable, this is not akin to a mechanical action.
Further, the merchandise in NY N238211 was found to be a “set” for tariff classification purposes, and was classified pursuant to GRI 3(b). The subject “Chop Chop” chopper, however, is classifiable pursuant to GRI 1, because it is a non-electric hand-operated mechanical appliance, weighting 10 kg or less, of subheading 8210.00.00, HTSUS, and it is used in the preparation of food which fulfills the conditions set out in the EN to 82.10.
HOLDING:
By application of GRI 1, the subject Curtis Stone “Chop Chop” Deluxe Food Chopper is classified in subheading 8210.00.0000, HTSUS, which provides for, “Hand-operated mechanical appliances, weighting 10 kg or less, used in the preparation , conditioning or serving of food or drink, and base metal parts thereof.” The column one rate of duty is 3.7%
You are instructed to DENY the protest.
In accordance with sections IV and VI of the CBP Protest/Petition Processing Handbook, you are to mail this decision, together with the CBP Form 19, to the Protestant no later than 60 days from the date of this letter. Any re-liquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision. Sixty days from the date of the decision, the Office of International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at http://www.cbp.gov by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division