Sno-cone machine and ice pop makers

HQ 085832 November 20, 1989 CLA-2 CO:R:C:G 085832 JMH CATEGORY: Classification TARIFF NO.: 3924.90.50, 8210.00.00 Mr. Larry Gonack Lanard Toys Ltd. 200 5th Avenue, Suite 208 New York City, New York 10010 RE: Sno-cone machine and ice pop makers Dear Mr. Gonack: This is in regard to New York Ruling Letter 834017, issued on December 13, 1988, concerning the classification of the "Kool- Aid Sno-Cone Machine" imported from China. As stated in that ruling, the goods were determined to be classified under subheading 3924.90.50, of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). We now conclude that this ruling is in error. FACTS: The subject merchandise is the "Kool-Aid Sno-Cone Machine", item number 7120, imported from China. The "Kool-Aid Sno-Cone Machine" measures 12.25 inches high and 11.5 inches wide at its maximum dimensions. At its top is a plastic "Kool-Aid Man", which upon removal displays an open plastic ice chute. This chute descends to a metal ice shaver with a plastic handle and locking cap. The machine is packaged with a plastic ice scoop, two disposable plastic cups and a package of "Kool-Aid" brand unsweetened soft drink mix. ISSUE: Whether the "Kool-Aid Sno-Cone Machine" was properly classified within heading 3924, HTSUSA, or whether it should be classified within heading 8210.00.00, HTSUSA. LAW AND ANALYSIS: The classification of merchandise according to the HTSUSA is governed by the General Rules of Interpretation (GRI's). GRI 1, HTSUSA, states in part that "for legal purposes, classification -2- shall be determined according to the terms of the headings and any relative section or chapter notes...and the following provisions..." GRI 3(a), HTSUSA, provides that when two headings are applicable, the most specific heading is preferred. The competing headings in this instance are headings 3924 and 8210.00.00, HTSUSA. These headings describe: 3924 Tableware, Kitchenware, other household articles and toilet articles, of plastics... 3924.90.50 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... It is the opinion of this office that the correct classification for the sno-cone machine is under heading 8210.00.00, HTSUSA. Chapter 82, Note 1, HTSUSA, states "...this chapter covers all articles with a blade, working edge, working surface or other working part of: (a) Base metals..." The subject sno-cone machine has a working part, the ice shaver, of base metal. Therefore, it is included within Chapter 82, heading 8210.00.00, since that heading is most specific. The other items packaged with the sno-cone machines -- the plastic scoop, disposable plastic cups, and the package of "Kool- Aid" brand drink mix -- fail the description provided within Chapter 82, Note 1. Therefore, by themselves they are not classifiable within heading 8210.00.00. However, GRI 3(b), HTSUSA, addresses goods packaged together. GRI 3(b) states: goods put up in sets for retail sale... shall be classified as if they consisted of the material or component which gives them their essential character, as far as this criterion is applicable. To determine what is a "set" so to implement this rule, the Explanatory Notes to the HTSUSA must be examined. The Explanatory Notes, although not dispositive, are to be looked to for the proper interpretation of the HTSUSA. 54 Fed. Reg. 35127, 35128 (August 23, 1989). The Explanatory Note for Rule 3(b) gives a three part test for "goods put up in sets for retail sale." Harmonized Commodity Description and Coding System (HCDCS), Vol. 1, p. 4. The three step definition states: -3- "For 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)." (emphasis added) Since these three steps are listed in the conjunctive, all three must be met. First, since plastic products and food stuffs are not classified within heading 8210.00.00, the articles are classifiable within different headings. Secondly, the merchandise are put together to meet the specific activity of making sno-cones. Thirdly, they are packed together for direct sale to the user without any need for further packaging. Therefore, the sno-cone machine, plastic scoop and cups, and package of "Kool-Aid" are a "set" within the meaning of GRI 3(b). The classification of sets is determined by the item which gives the set its "essential character." It is the opinion of this office that the sno-cone machine gives this set its essential character. Therefore, the sno-cone machine set is classifiable within heading 8210.00.00. HOLDING: The "Kool-Aid Sno-Cone Machine" is properly classified within heading 8210.00.00, HTSUSA. The "Kool-Aid Sno-Cone Machine" packaged with the plastic ice scoop, plastic cups, and package of "Kool-Aid" brand drink mix are a set. The sno-cone machine gives the set its essential character. Therefore, the sno-cone set is also properly classified within heading 8210.00.00. This ruling modifies New York Ruling Letter 834017, dated December 13, 1988, which had classified these goods under heading 3924.90.50, HTSUSA. Sincerely, John Durant, Director Commercial Rulings Division