OT:RR:CTF:CPMMA H330005 NAH
Center Director
Consumer Products and Mass Merchandising
Center of Excellence and Expertise
U.S. Customs and Border Protection
Attn: Bradley M. Clemence, Import Specialist
RE: Request for Further Review of Protest Number 3002-21-103548; Tariff classification of and Applicability of Section 301 Trade Remedy to BBQ Tools.
Dear Center Director,
This is in reply to the Application for Further Review ("AFR") of Protest No.
3002-21-103548, filed on April 5, 2021, by Target General Merchandise, Inc. ("Protestant"), contesting U.S. Customs and Border Protection's ("CBP") classification of "BBQ Tools" from China under the Harmonized Tariff Schedule of the United States ("HTSUS") and the application of certain Section 301 trade remedies.
The subject merchandise includes 4 sets of "BBQ Tools" that were entered between December 8, 2019, and March 8, 2020, in subheading 8215.20.0000, HTSUSA ("Annotated"), which provides for "Spoons, forks, ladles, skimmers, cake-servers, fish-knives, butter-knives, sugar tongs and similar kitchen or tableware; and base metal parts thereof: Other sets of assorted articles" and subheading 9903.88.37, HTSUS, as a product of China. Between December 8, 2019, and March 8, 2020, the Port of Tacoma, WA, liquidated the subject entries under subheadings 8215.20.0000, 8215.99.5000, and 9903.88.03, HTSUS. At the time of liquidation, no 301 trade remedies, such as found in 9903.88.37, HTSUS, were applied to the subject merchandise classified under subheading 8215.20.0000, HTSUSA.
FACTS:
The products at issue are grill tool sets that appear in four variations:
The first set, referred to as the SS Tool Set 3pc - Room Essentials (item 009-06-1139), consists of tongs, a spatula, and a three-prong fork. Each component of the set has a ring on the end for hanging and the handle is covered in a black silicon. The ends for interacting with food are steel.
The second set, referred to as the SS Tool Set 7pv - Room Essentials (item 009-06-1161), consists of four skewers, a three-prong fork, a spatula, and tongs. Each component has a ring on the end for hanging and the handles of the fork, spatula, and tongs are covered in wood. The ends for interacting with food and the entirety of the skewers are steel.
The third set, referred to as the Char-Broil 2pc Medallion Grill Tool Set Stainless Steel (item 009-06-8150), consists of a spatula and tongs. Each component of the set has a ring on the end for hanging and the handle is covered in a black silicon. The ends for interacting with food are steel. Additionally, the spatula has a serrated side designed for cutting food.
The fourth set, referred to as the 3pc Americana Grill Set Red - Sun Squad (item 009-09-1709), consists of a three-prong fork, tongs, and a spatula. Each component of the set has a ring on the end for hanging and the handle is covered in a red silicon. The ends for interacting with food are steel except for the tongs which are covered in red silicon.
The protested merchandise consist of ten entries that were entered at the Port of Tacoma, Washington, ("Port") between December 8, 2019, and March 8, 2020, and were liquidated between November 6, 2020, and January 29, 2021, under the following subheadings: 8215.20.0000, HTSUSA, as "Spoons, forks, ladles, skimmers, cake-servers, fish-knives, butter-knives, sugar tongs and similar kitchen or tableware; and base metal parts thereof: Other sets of assorted articles"; 8215.99.5000, HTSUSA, as "Spoons, forks, ladles, skimmers, cake-servers, fish-knives, butter-knives, sugar tongs and similar kitchen or tableware; and base metal parts thereof: Other: Other: Other (including parts)"; and 9903.88.03, HTSUS, as "articles the product of China, as provided for in U.S. note 20(e) to this subchapter and as provided for in the subheadings enumerated in U.S. note 20(f)." The Protestant filed this Protest and AFR on April 5, 2021, asserting that the subject merchandise, classified under subheading 8215.20.0000, HTSUSA, should have 301 remedies applied as stipulated under 9903.88.37, HTSUS, as "articles the product of China . . . each covered by an exclusion granted by the U.S. Trade Representative."
ISSUE:
Whether the subject articles are entitled to a Section 301 exclusion as flatware?
LAW AND ANALYSIS:
Initially, we note that the matter is protestable under 19 U.S.C. 1514(a)(2) as a decision on classification. The protest was timely filed, within 180 days of liquidation for entries made on or after December 18, 2004. See Miscellaneous Trade and Technical Corrections Act of 2004, Pub. L. 108-429, 2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. 1514(c)(3) (2006)). Further review of Protest No. 3002-21-103548 is properly accorded pursuant to 19 C.F.R. 174.24(b) because the decision against which the protest was filed is alleged to involve a question of law or fact that has not previously been ruled upon by CBP or the courts.
The classification of goods under the HTSUS 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 GRIs 2 through 6 may then be applied in order. In this case, the 2019 HTSUS headings under consideration are as follows:
8215 Spoons, forks, ladles, skimmers, cake-servers, fish-knives, butter-knives, sugar tongs and similar kitchen or tableware.
8215.20 .0000 Other sets of assorted articles.
Other:
8215.99 Other:
8215.99.5000 Other (including parts).
9903.88.03 Except as provided in headings 9903.88.13, 9903.88.18, 9903.88.33, 9903.88.34, 9903.88.35, 9903.88.36, 9903.88.37, 9903.88.38, 9903.88.40, 9903.88.41, 9903.88.43, 9903.88.45, 9903.88.46,
9903.88.48, 9903.88.56, 9903.88.64, 9903.88.66, 9903.88.67 or 9903.88.68, articles the product of China, as provided for in U.S. note 20(e) to this subchapter and as provided for in the subheadings enumerated in U.S. note 20(f)
9903.88.37 Articles the product of China, as provided for in U.S. note 20(pp) to this subchapter, each covered by an exclusion granted by the U.S. Trade Representative
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Note 3 to Chapter 82 states in pertinent part:
3. Sets consisting of one or more knives of heading 8211 and at least an equal number of articles of heading 8215 are to be classified in heading 8215.
Additional U.S. Notes to Chapter 82 state in pertinent part:
1. The provisions in this chapter which specifically refer to kitchen or tableware include articles of types which are used outdoors as well as those which are used indoors.
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3. For the purposes of determining the rate of duty applicable to sets provided for in heading 8205, 8206, 8211 or 8215, a specific rate of duty or a compound rate of duty for any article in the set shall be converted to its ad valorem equivalent rate, i.e., the ad valorem rate which, when applied to the full value of the article determined in accordance with section 402 of the Tariff Act of 1930, as amended, would provide the same amount of duties as the specific or compound rate.
Statistical Notes to Chapter 82 state in pertinent part:
1. For the purposes of statistical reporting of sets in heading 8205, 8206, 8211 or 8215, the number of pieces reported shall be the total number of separate pieces in the set(s).
U.S. note 20(pp) to 9903.88.37, HTSUS, states in pertinent part:
The U.S. Trade Representative determined to establish a process by which particular products classified in heading 9903.88.03 and provided for in U.S. notes 20(e) and (f) to this subchapter could be excluded from the additional duties imposed by heading 9903.88.03, and by which particular products classified in heading 9903.88.04 and provided for in U.S. note 20(g) to this subchapter could be excluded from the additional duties imposed by heading 9903.88.04. See 83 Fed. Reg. 47974 (September 21, 2018) and 84 Fed. Reg. 29576 (June 24, 2019). Pursuant to the product exclusion process, the U.S. Trade Representative has determined that the additional duties provided for in heading 9903.88.03 or in heading 9903.88.04 shall not apply to the following particular products, which are provided for in the enumerated statistical reporting numbers:
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(31) Sets of flatware of stainless steel, containing no article plated with precious metal, put up for retail sale (described in statistical reporting number 8215.20.0000)
The Harmonized Commodity Description and Coding System Explanatory Notes ("ENs") constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of the headings. It is CBP's practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The ENs to Chapter 82 state in pertinent part:
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.
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Tools, cutlery, etc., do not in general fall in this Chapter unless the blade, working edge, working surface or other working part is of base metal.
The ENs heading 8215, HTSUS, state in pertinent part:
This heading includes:
(1) Spoons of all kinds including salt or mustard spoons.
(2) Table forks; carving forks, serving forks, cooks' forks; cake forks; oyster forks; snail forks; toasting forks.
(3) Ladles and ladle type skimmers (for vegetables, frying, etc.).
(4) Slices for serving fish, cake, strawberries, asparagus.
(5) Non-cutting fish-knives and butter-knives.
(6) Sugar tongs of all kinds (cutting or not), cake tongs, hors-d'oeuvre tongs, asparagus tongs, snail tongs, meat tongs and ice tongs.
(7) Other tableware, such as poultry or meat grips, and lobster or unit grips.
These goods may be of one piece or fitted with handles of base metal, wood, plastics, etc.
In accordance with Chapter Note 3, the heading also includes sets consisting of one or more knives of heading 82.11 and at least an equal number of articles of this heading.
* * * * *
There is no dispute as to the classification of the item sets and their components under chapter 82, HTSUS, and heading 8215, HTSUS, as "[s]poons, forks, ladles, skimmers, cake-servers, fish-knives, butter-knives, sugar tongs and similar kitchen or tableware; and base metal parts thereof." Additionally, Protestant does not dispute the classification of certain components of the item sets under subheading 8215.20.0000, HTSUSA, and the applicable duty rate being supplied by subheading 8215.99.5000, HTSUSA. As such, the only consideration is whether the items classified under subheading 8215.20.0000, HTSUSA, also fall under the section 301 remedy described in U.S. note 20(pp)(31) to subheading 9903.88.37, HTSUS.
Upon review of the four item sets presented, CBP must note that the third set, the Char-Broil 2pc Medallion Grill Tool Set, should not have been classified under subheading 8215.20.0000, HTSUSA. According to GRI 3:
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 explanatory note to GRI 3(a) states:
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.
For a set to be classified as an "other sets of assorted articles" it must contain at least two articles that are classifiable in two different subheadings of 8215. The third item set does not contain a fork or spoons and ladles, it contains a spatula and tongs. Spatulas and tongs are both correctly classified as "Other (including parts)" under subheading 8215.99.50, HTSUS. See Headquarters Ruling Letter ("HQ") H297785, dated August 27, 2019 (noting a spatula and tongs included in a larger set would individually be classified under subheading 8215.99.5000, HTSUSA); New York Ruling Letter ("NY") N331015, dated March 1, 2023 (classifying a multi-feature spatula in subheading 8215.99.5000, HTSUSA); NY N324526, dated March 10, 2022 (stating that multiple articles in a set classifiable under heading 8215, HTSUS, are classified under subheading 8215.20, HTSUS). Therefore, the third set only contains two items that are both correctly classified under the same subheading and cannot be classified as assorted articles and must be classified under subheading 8215.99.5000, HTSUSA, as "Spoons, forks, ladles, skimmers, cake-servers, fish-knives, butter-knives, sugar tongs and similar kitchen or tableware: Other: Other: Other (including parts)."
Turning to item sets one, two, and four, CBP notes that to meet the exclusion to Section 301 provided for in U.S. note 20(pp)(31) to Chapter 99, HTSUS, the products must be "sets of flatware of stainless steel."[1] The term "flatware" is not explicitly defined by the legal notes, the Explanatory Notes ("ENs"), or in previously issued CBP rulings. "When...a tariff term is not defined in either the HTSUS or its legislative history," its correct meaning is its common or commercial meaning. See Rocknel Fastener, Inc. v. United States, 267 F.3d 1354, 1356 (Fed. Cir. 2001). "To ascertain the common meaning of a term, a court may consult 'dictionaries, scientific authorities, and other reliable information sources' and 'lexicographic and other materials.'" Id. at 1356-1357 (quoting C.J. Tower & Sons v. United States, 69 C.C.P.A. 128, 673 F.2d 1268, 1271 (1982); Simod Am. Corp. v. United States, 872 F.2d 1572, 1576 (Fed. Cir. 1989)). According to Merriam-Webster's Online Dictionary "flatware" is "relatively flat tableware" especially "eating and serving utensils (such as knives, forks, and spoons)." (Last visited January 8, 2024.) On the occasions CBP has used the term "flatware" in published rulings, CBP has used the word "flatware" to refer to various sets of knives, forks, and spoons but CBP has not explicitly defined the term. See e.g. NY N322183, dated November 2, 2021 (classifying a 20-piece stainless-steel flatware set that consists of the following: salad forks, dinner forks, dinner knives, dinner spoons, and teaspoons); HQ H007444, dated June 16, 2008 (classifying drawer organizers for the kitchen); NY N302032, dated December 21, 2018 (classifying a 20-piece flatware set that consists of four stainless steel salad forks, four stainless steel dinner forks, four stainless steel dinner knives, four stainless steel dinner spoons, and four stainless steel teaspoons); HQ H004589, dated March 14, 2008 (classifying knives, forks, and spoons as a set and separately); and HQ H004587, dated March 14, 2008 (classifying knives, forks, and spoons as a set and separately). As such, CBP finds that the prevailing and common understanding of the term "flatware" generally refers to relatively small knives, forks, and spoons used for eating and serving. This guiding principle in conjunction with a review of the types of tableware and kitchenware traditional referred to as "flatware" is sufficient to conclude that the item sets at issue do not contain flatware.
Item sets one, two, and four include multiple components but each contains a fork. However, the fork included is not for eating or primarily for serving. CBP reaches this conclusion by considering the design of the fork and the other components of the set. The forks are large, with very long handles, and, therefore, impractical for eating but usable for serving food. However, the other components included in the sets are tongs, spatulas, and skewers. These are items that collectively are used to prepare and cook food, especially on a grill. Additionally, the spatulas have edges designed to cut food which demonstrates the primary intention of the spatulas is preparation and cooking food. Altogether, the size and design of the forks and the clear purpose of the other components of the item sets demonstrates the forks and the items sets as a whole are designed for the preparation of food, especially on a grill.
Protestant asserts that the flatware exclusion from section 301 duties should apply because the components within the item sets have the capability of serving food. This argument is not persuasive. An item's capability for serving food does not alone make it flatware. Classic holloware, such as bowls can serve food. A pizza peel is relatively flat and can serve food, but a pizza peel is not flatware. On the other hand, a dining fork, quintessential flatware, is still capable of serving food, cooking food, preparing food, and being used on a grill. Flatware is not a clearly defined category of utensil but the common usage and the exemplars CBP has labeled "flatware" in the past demonstrate that the traditional relatively small knives, forks, and spoons primarily used for eating and capable of serving food are flatware. See e.g. NY N322183, dated November 2, 2021 (classifying a 20-piece stainless-steel flatware set that consists of the following: salad forks, dinner forks, dinner knives, dinner spoons, and teaspoons); HQ H007444, dated June 16, 2008 (classifying drawer organizers for the kitchen); NY N302032, dated December 21, 2018 (classifying a 20-piece flatware set that consists of four stainless steel salad forks, four stainless steel dinner forks, four stainless steel dinner knives, four stainless steel dinner spoons, and four stainless steel teaspoons); HQ H004589, dated March 14, 2008 (classifying knives, forks, and spoons as a set and separately); and HQ H004587, dated March 14, 2008 (classifying knives, forks, and spoons as a set and separately). The item sets at issue here are primarily used for the preparation of food, with a secondary capability of serving food but would rarely be used to eat food. The serving function of the item sets is ancillary to primary purpose of preparing food. As such, no component of the item sets meets the definition of "flatware" and none of the entries qualify for the U.S. note 20(pp)(31) to Chapter 99 exclusion.
Products of China are subject to classification under heading 9903.88.03, HTSUS, and have an additional rate of duty applied depending upon the exact classification of the article. In this case, the items classified under 8215.20.0000, HTSUSA, fall under the provisions of U.S. note 20(f) to chapter 99 because they are classified under subheading 8215.20.00, HTSUS, and are products of China. Finally, the products do not meet the criteria for exclusion from the additional duties stipulated in U.S. note 20(pp) to chapter 99 because they are not flatware.
HOLDING:
By application of GRI 1 and GRI 6, the first set, referred to as the SS Tool Set 3pc - Room Essentials (item 009-06-1139), the second set, referred to as the SS Tool Set 7pv - Room Essentials (item 009-06-1161), and the fourth set, referred to as the 3pc Americana Grill Set Red - Sun Squad (item 009-09-1709), are classified in heading 8215, HTSUS, specifically in subheading 8215.20.0000, HTSUSA, as "Spoons, forks, ladles, skimmers, cake-servers, fish-knives, butter-knives, sugar tongs and similar kitchen or tableware; and base metal parts thereof: Other sets of assorted articles." Between December 8, 2019, and March 8, 2020, the column one, general rate of duty was "[t]he rate of duty applicable to that article in the set subject to the highest rate of duty" which would be 5.3% ad valorem (8215.99.5000, HTSUSA) and the 9903.88.03, HTSUS, U.S. note 20(e), and U.S. note 20(f) additional rate was 25% ad valorem.
By application of GRI 1 and GRI 6, the third item set, referred to as the Char-Broil 2pc Medallion Grill Tool Set Stainless Steel (item 009-06-8150), is classified in heading 8215, HTSUS, specifically in subheading 8215.99.5000, HTSUSA, as "Spoons, forks, ladles, skimmers, cake-servers, fish-knives, butter-knives, sugar tongs and similar kitchen or tableware; and base metal parts thereof: Other: Other: Other (including parts)." Between December 8, 2019, and March 8, 2020, the column one, general rate of duty was 5.3% ad valorem.
You are instructed to DENY the protest, except to the extent reclassification of the merchandise is indicated above results in a partial allowance.
You are instructed to notify the Protestant of this decision no later than 60 days from the date of this decision. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to this notification. Sixty days from the date of the decision, the Office of Trade, Regulations and Rulings will make the decision available to CBP personnel, and to the public on the Customs Rulings Online Search System (CROSS) at https://rulings.cbp.gov/, which can be found on the CBP website at http://www.cbp.gov and other methods of public distribution.
Sincerely,
Yuliya A. Gulis, Director
Commercial and Trade Facilitation Division
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[1] The exclusions at issue were implemented by Federal Register publication 85 FR 549 (January 6, 2020), and effective between September 24, 2018, and August 7, 2020.