Tuesday, February 02, 2016

Ruling of the Week 2016.4: Curtis Stone's Chop Chop

Here is something you may not know about me . . . I watch competitive cooking shows the way a normal guy watches baseball. As far as I am concerned, Alton Brown is the Kenesaw Mountain Landis of cooking and Ted Allen is its Howard Cosell. Consequently, when a ruling (HQ H266149 (Oct. 21, 2015)) from Customs and Border Protection invokes the name of Curtis Stone, I pay attention. In this case, the question was the tariff classification of "the Curtis Stone Chop Chop Deluxe Food Chopper."

Exhibit A:

I suspect someone at Customs is a fan because the sentence "Curtis Stone is a celebrity chef from Australia," is irrelevant to the issue. It is, however, a true statement.

As you can tell from the picture, this is a hand powered chopper with interchangeable blades. The top handle presses down, pushing the food item through the blade and into the receiving container. Simple.

The goods entered the United States classified in 8205.51.30 (3.7%) as handtools (including glass cutters) not elsewhere specified or included; household tools; other. The statistical level refers to "Kitchen and table implements," but that is not really relevant for classification purposes. The customs broker subsequently corrected the entry and asserted that the correct classification is 7323.93.0060 (2%), which covers "Table, kitchen or other household articles . . . of iron or steel, of stainless steel: Kitchen ware." Customs and Border Protection rejected both classifications and went with 8210.00.0000 (3.7%) covering "Hand-operated mechanical appliances, weighing 10 kg or less, used in the preparation . . . of food . . . ."

Problem one for Curtis, who was not actually the protestant, is that the Explanatory Notes to Heading 7323 state that the heading only covers items not more specifically provided for in another heading. Further, the Explanatory Notes exclude from Heading 7323 household articles having the character of tools including cheese graters, mincers, and vegetable mashers. On the other hand, the Explanatory Notes indicate that Chapter 82 covers "Articles of cutlery" and "certain mechanical domestic appliances." To make matters worse, the EN to 8205 states that it covers all hand tools not included in other Headings of Chapter 82. The Chop Chop sits on the countertop when in use and is, therefore, not hand held. That brings us to 8210.

The Explanatory Notes state that 8210 covers non-electric mechanical appliances, not exceeding 10 kg, used in the preparation of food. The Note goes on to say that something is "mechanical" "if it has such mechanisms as crank-handles, gearing, Archimedian screw-actions, pumps, etc.; a simple lever or plunger is not in itself, however, regarded as a mechanical feature  . . . 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."

According to Customs, 8210 describes the Chop Chop, which is a sufficient basis on which to exclude it from 7323 and 8205.

But, there is the mandolin issue. Exhibit B.

Mandolins have been classified in 7323, so what gives? According to Customs, the hand operated push and pull action of the mandolin is not mechanical in the same sense as is the plunger on the Chop Chop. With all due respect to Customs, I would worry about that. It strikes me that neither device provides much in the way of mechanical advantage. The plunger has a bit of a gravity assist, but that's it, and the note says a plunger is not enough. As far as I can tell, there is no gear, pulley, spring or other mechanical element that amplifies the action of the user. That strikes me as a weakness in the decision.

But, that is just me. What do you think. Is the Chop Chop mechanical? Should Curtis Stone file a case? If so, can we call him as an expert witness and have him make French fries in the courtroom as demonstrative evidence and as a snack? If so, I'm totally in.


Dan Campbell said...

Kenesaw Mountain Landis was former Customs Court/CIT Judge Frederick Landis Jr.'s great uncle.

Larry said...

That is a true and a very obscure fact. Clearly you are in the tribe of customs law geeks.

Anonymous said...

For what it's worth, back in 2012 the CIT addressed the definition of "handtool" in Wilton Industries v US (887 F. Supp. 2d 1293):
"Upon review of the term "handtool" in Webster's Dictionary, one is directed to the first definition under "tool," which reads: "1 a: an instrument ... used or worked by hand." Webster's Third New International Dictionary 1028, 2408. The Court applies this definition and finds that handtools do not have to be intended or designed to be operated wholly in the hand, but rather they need only be worked by hand. Therefore, the Court rejects Customs' "operates best test"[10] because applying the common meaning of the term handtool does not require that a tool or machine be operated wholly in the hand. The subject punches — whether they are used in the hand, as Defendant asserts, or whether they are used against a flat surface, as Plaintiff asserts — need to be operated with at least one hand, if not two hands, so they are handtools according to the common meaning of the term."