HQ 085832: Sno-cone machine and ice pop makers

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            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