CLA-2 OT:RR:CTF:TCM H132495 EGJ
Darlene DiBernardo
Senior Trade Advisor
Deringer Logistics Consulting Group
173 West Service Road
Champlain, NY 12919
RE: Revocation of NY N121616 and NY N236395; Classification of Wooden Desks and Wooden Bookcases
Dear Ms. DiBernardo:
In a letter to U.S. Customs and Border Protection (CBP) dated August 11, 2010, you requested a ruling on behalf of Vermont Precision Woodworks (Vermont). Specifically, you requested a tariff classification ruling under the Harmonized Tariff Schedule of the United States (HTSUS) for three articles of wooden furniture. Those three articles of furniture are: the Shaker Cottage Writing Desk, the Shaker Cottage Short Bookcase and the Shaker Cottage Tall Bookcase.
In New York Ruling Letter (NY) N121616, dated September 16, 2010, CBP classified all the furniture under subheading 9403.50, HTSUS, which provides for wooden furniture of a kind used in the bedroom. We have reviewed NY N121616 and find the ruling to be in error. For the reasons set forth below, we hereby revoke NY N121616 and one other ruling with substantially similar desk furniture: NY N236395, dated December 21, 2012.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. §1625(c)(1)), as amended by section 623 of Title VI, notice of the proposed revocation was published on April 30, 2014, in the Customs Bulletin, Volume 48, No. 17. CBP received no comments in response to this notice.
FACTS:
In NY N121616, CBP described the writing desk as a wooden desk with a single drawer. The writing desk measures 40 inches wide by 23 inches deep and 30 inches high. The ruling described the short bookcase as a wooden bookcase with two shelves. The short bookcase measures 36 inches wide by 14 inches deep by 30 inches high. Finally, the ruling described the tall bookcase as a wooden bookcase with four shelves. The tall bookcase measures 24 inches wide by 14 inches deep by 48 inches high. In the reconsideration request, you submitted a catalog picture of the three articles of furniture arranged together. That picture is provided below:
The desk and bookcases are part of the Alaterre Collection distributed by Bolton Furniture. They are sold by retailers such as Kohls, Brookstone and Amazon. The desk is sold in the retailers’ home furniture departments. The desk is described on the Kohls website, available at www.kohls.com, as follows:
Make over your home office with this writing desk by Alaterre. Its large desktop makes it the ideal place for studying or working. Plus, it has a simply chic style that will enhance your furniture collection.
Flip-down drawer holds your keyboard.
Sturdy wood construction ensures long-lasting use.
Similarly, the two bookcases are also sold in the home furniture departments of these retailers. The Brookstone website, available at www.brookstone.com, describes the tall bookcase as follows:
The Shaker Cottage Tall Bookcase Alaterre Collection is a stunning addition to any room in the home. The timeless design and superior craftsmanship ensure many years of style and storage. Have you been searching for a bookcase that is perfect for the living room, the office, or even the bedroom? Take a look at the Shaker Cottage Tall Bookcase Alaterre Collection by Bolton. Great for books, knick knacks and more! Dynamic and durable, this bookcase is sure to please.
ISSUE:
1. Is the desk classified in subheading 9403.30, HTSUS, as wooden furniture of a kind used in offices, in subheading 9403.50, HTSUS, as wooden furniture of a kind used in the bedroom, or in subheading 9403.60, HTSUS, as other wooden furniture?
2. Are the bookcases classified in subheading 9403.30, HTSUS, as wooden furniture of a kind used in offices, in subheading 9403.50, HTSUS, as wooden furniture of a kind used in the bedroom, or in subheading 9403.60, HTSUS, as other wooden furniture?
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI's). 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 2 through 6 may then be applied in order. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and mutatis mutandis, to the GRIs 1 through 5.
The HTSUS provisions at issue are as follows:
9403 Other furniture and parts thereof:
9403.30 Wooden furniture of a kind used in offices …
* * *
9403.50 Wooden furniture of a kind used in the bedroom …
* * *
9403.60 Other wooden furniture …
* * *
Additional U.S. Rule of Interpretation 1(a), HTSUS, provides, in relevant part, that:
In the absence of special language or context which otherwise requires:
… a tariff classification controlled by use (other than actual use) is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use.
* * *
The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff 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 these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
EN 94.03 states, in pertinent part, that:
[T]his heading covers all seats (including those for vehicles, provided that they comply with the conditions prescribed in Note 2 to this Chapter), for example:
This heading covers furniture and parts thereof, not covered by the previous headings. It includes furniture for general use (e.g., cupboards, show cases, tables, telephone stands, writing desks, escritoires, book cases, and other shelved furniture (including single shelves presented with supports for fixing them to the wall), etc.), and also furniture for special uses.
The heading includes furniture for:
(1) Private dwellings, hotels, etc., such as : cabinets, linen chests, bread chests, log chests; chests of drawers, tallboys; pedestals, plant stands; dressing tables; pedestal tables; wardrobes, linen presses; hall stands, umbrella stands; side boards, dressers, cupboards; food safes; bedside tables; beds (including wardrobe beds, camp beds, folding beds, cots, etc.); needlework tables; stools and foot-stools (whether or not rocking) designed to rest the feet, fire screens; draught screens; pedestal ashtrays; music cabinets, music stands or desks; play pens; serving trolleys (whether or not fitted with a hot plate).
(2) Offices, such as: clothes lockers, filing cabinets, filing trolleys, card index files, etc.
(3) Schools, such as: school desks, lecturers’ desks, easels (for blackboards, etc.).
(4) Churches, such as: altars, confessional boxes, pulpits, communion benches, lecterns, etc.
(5) Shops, stores, workshops, etc., such as : counters; dress racks; shelving units; compartment or drawer cupboards; cupboards for tools, etc.; special furniture (with cases or drawers) for printing works.
(6) Laboratories or technical offices, such as: microscope tables; laboratory benches (whether or not with glass cases, gas nozzles and tap fittings, etc.); fume cupboards; unequipped drawing tables.
* * *
There is no dispute that the desk is classified under heading 9403, HTSUS, as furniture. According to GRI 6, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings. Under heading 9403, HTSUS, there are four separate subheadings for wooden furniture. Subheadings 9403.30, HTSUS, 9403.40, HTSUS, and 9403.50, HTSUS, each provide for wooden furniture of a kind used in offices, kitchens and bedrooms, respectively. Subheading 9403.60, HTSUS, is a residual provision for other wooden furniture. If the desk is not classifiable in subheadings 9403.30 through 9403.50, HTSUS, it will be classified in subheading 9403.60, HTUS.
In The Pomeroy Collection, Ltd. v. United States, 559 F.Supp. 2d 1374, 1394 n. 23 (Ct. Int’l Trade 2008), the Court of International Trade (CIT) described different types of HTSUS provisions as follows:
A “use” provision is “a provision describing articles by the manner in which they are used as opposed to by name,” while an eo nomine provision is one “in which an item is identified by name.” Len-Ron Mfg. Co. v. United States, 334 F.3d 1304, 1308 (Fed. Cir. 2003). And there are two types of "use" provisions -- "actual use" and "principal (formerly known as "chief") use." An "actual use" provision is satisfied only if "such use is intended at the time of importation, the goods are so used and proof thereof is furnished within 3 years after the date the, goods are entered." See Additional U.S Rule of Interpretation ("ARI") 1(b) (quoted in Clarendon Mktg., Inc. v. United States, 144 F.3d 1464, 1467 (Fed. Cir. 1998)). In contrast, a "principal use" provision functions essentially "as a controlling legal label, in the sense, that even if a particular import is proven to be actually used inconsistently with its principal use, the import is nevertheless classified according to its principal use." Clarendon Mktg., 144 F.3d at 1467.
In Primal Lite, Inc. v. United States, 22 C.I.T. 697, 700 (1998), the CIT described one method to identify principal use provisions as follows:
The use of the term "of a kind" is nothing more than a statement of the traditional standard for classifying importation[s] by their use, namely, that it need not necessarily be the actual use of the importation but is the use of the kind of merchandise to which the importation belongs.
Subheadings 9403.30, HTSUS, 9403.40, HTSUS, and 9403.50, HTSUS, each use the term “of a kind.” As such, these subheadings are principal use provisions. Under Additional U.S. Rule of Interpretation 1(a) (AUSR 1(a)), tariff classification under a principal use provision must be determined in accordance with the use in the United States of that class or kind to which the imported goods belong.
Thus, in order to be classified as wooden furniture of a kind used in offices, kitchens or bedrooms, the desk must belong to the same kind or class of goods as such furniture. In United States v. Carborundum Co., 536 F.2d 373, 377 (CCPA 1976) (Carborundum), the U.S. Court of Customs and Patent Appeals stated that in order to determine whether an article is included in a particular class or kind of merchandise, the court must consider a variety of factors, including: (1) the general physical characteristics of the merchandise; (2) the channels, class or kind of trade in which the merchandise moves (where the merchandise is sold); (3) the expectation of the ultimate purchasers; (4) the environment of the sale (i.e., accompanying accessories and marketing); (5) usage, if any, in the same manner as merchandise which defines the class; (6) the economic practicality of so using the import; and (7) the recognition in the trade of this use. Id. While these factors were developed under the Tariff Schedule of the United States (predecessor to the HTSUS), the courts have also applied them under the HTSUS. See, e.g. Aromont USA, Inc. v. United States, 671 F.3d 1310 (Fed. Cir. 2012), Essex Manufacturing, Inc. v. United States, 30 C.I.T. 1 (2006).
In NY N121616, we determined that the wooden desk and bookcases were of the same class or kind of goods principally used as bedroom furniture. Applying the Carborundum factors, however, we note that the physical characteristics of the writing desk are: it is relatively small, its working surface measures 40 inches long by twenty-three inches wide, and it has only one small drawer across the top. With regard to the environment of the sale, we note that three different retailers sell the subject writing desk. An internet search reveals that other writing desks share the same physical characteristics as the instant merchandise. Namely, other writing desks are also relatively small and consist of simple construction. Other retailers feature pictures of their writing desks in different home settings. Some are pictured next to bookshelves in the corner of a living area or a den. As such, the ultimate purchaser would expect to use the desk as a workstation in his/her home.
Finally, we note that EN 94.03 lists writing desks as an example of general use furniture, which comports with merchandise that defines the class of “other” wooden furniture. As the writing desks are small, they can easily fit into a space in any room of the home. Also, as to the channels of trade, they are not sold solely by office goods retailers; they are sold by department stores and general online retailers. These writing desks are distinguishable from desks for specific uses, such as desks sold as part of children’s bedroom suites. See, e.g. NY N080635, dated November 5, 2009, and NY N023523, dated February 28, 2008 (desks sold as parts of children’s bedroom suites were classified as bedroom furniture in subheading 9403.50, HTSUS). For all of these reasons, we do not find that the Shaker Cottage Writing Desk is of the same class or kind of goods as bedroom furniture or office furniture. Therefore, it is classified under subheading 9403.60, HTSUS, as other wooden furniture.
Like the wooden desk, we must apply the Carborundum factors to determine the principal use of the two bookcases. Looking at their physical characteristics, the two bookcases are shelving units. They are sold in both the home office and the general furniture sections of three different retailers. An ultimate purchaser would likely use the bookshelves to both store books and to display personal items. With regard to marketing, the catalog picture shows items such as baskets, framed photographs and coral displayed on the bookshelves. The Brookstone website states that the bookshelves are suitable for use in any room in the house. The bookshelves are likely used as general purpose shelving units in rooms such as the home office, the living room and the den.
For all of these reasons, the bookcases are not of the same class or kind of goods as bedroom furniture. Moreover, these bookcases are not principally used in offices or kitchens. Prior to NY N121616, CBP consistently classified bookcases as other wooden furniture under subheading 9403.60, HTSUS. See NY L81587, dated December 30, 2004, NY R02946, dated December 28, 2005 and NY N015359, dated August 16, 2007. As such, the bookcases are classifiable in residual subheading 9403.60, HTSUS, as “other” furniture.
The merchandise in question may be subject to antidumping duties or countervailing duties. See Notice of Final Determination of Sales at Less Than Fair Value in the Investigation of Wooden Bedroom Furniture from the People's Republic of China, 69 Fed. Reg. 221, 67313 - 67320 (November 17, 2004). We note that the International Trade Administration is not necessarily bound by a country of origin or classification determination issued by CBP, with regard to the scope of antidumping orders or countervailing duties. Written decisions regarding the scope of AD/CVD orders are issued by the Import Administration in the Department of Commerce and are separate from tariff classification and origin rulings issued by Customs and Border Protection. You can contact them at http://www.trade.gov/ia/ (click on “Contact Us”). For your information, you can view a list of current AD/CVD cases at the United States International Trade Commission website at http://www.usitc.gov (click on “Antidumping and countervailing duty”), and you can search AD/CVD deposit and liquidation messages using ACE, the system of record for AD/CVD messages, or the AD/CVD Search tool available at http://adcvd.cbp.dhs.gov/adcvdweb/.
HOLDING:
By application of GRI 6 and AUSR 1(a), the Shaker Cottage Writing Desk, Shaker Cottage Short Bookcase and the Shaker Cottage Tall Bookcase are classifiable under subheading 9403.60.80, HTSUS, which provides, in pertinent part, for “Other furniture and parts thereof: Other wooden furniture: Other …” The 2014 column one, general rate of duty is free.
Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.
EFFECT ON OTHER RULINGS:
NY N121616, dated September 16, 2010, and NY N236395, dated December 21, 2012 are hereby revoked.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division