CLA-2 OT:RR:CTF:CPM H240475 CkG
TARIFF NO: 3926.90.99
Port Director
U.S. Customs and Border Protection
Port of Norfolk
101 E. Main Street
Norfolk, VA 23510
ATTN: Sandra-Love Arrington
Entry Specialist
Re: Application for Further Review of Protest No. 1401-12-100413; classification
of collapsible storage bins
Dear Port Director,
This is in response to your correspondence dated February 01, 2013, forwarding Application for Further Review of Protest Number 1401-12-100413, dated August 28, 2012. The Protest and AFR were filed on behalf of Bungalow LLC (‘Protestant”), contesting Customs and Border Protection’s (CBP) classification and liquidation of one entry of collapsible plastic storage bins in heading 3926 of the Harmonized Tariff Schedule of the United States (HTSUS).
Protestant entered the storage bins on January 15, 2012, in heading 9403, HTSUS, as other furniture. The entry was liquidated on April 27, 2012, in heading 3926, HTSUS, as other articles of plastic. This Protest and AFR were filed on August 28, 2012. Protestant asserts that the subject merchandise should be classified in heading 9403, HTSUS, as other furniture, because CBP ruled in New York Ruling (NY) M84092, dated June 12, 2006, that similar merchandise was classified in heading 9403, HTSUS.
FACTS:
At issue are six styles of collapsible bins of the SCOUT Collection by Bungalow, identified as the “Hang-10 Bin”, the “Junque Trunk”, the “Rump Roost”, the “Shouldah Bin”, the “Mightah Bin”, and the “Stand & Delivah”. All are made of 100% woven polypropylene fabric, and feature carrying handles on the sides. The Hang-10 bin measures 10.25" H x 9.5" D x 12.25” W and is marketed as a general storage bin and for hanging files. The Junque Trunk measures 15" H x D 15" x W 24" and is marketed for the storage of blankets, sports gear, etc. in car trunks. The Rump Roost comes in both medium and large sizes; the medium measures 14"H x 11.5"D x 18"W, and the large measures 15" H x 15 "D x 24" W. Both are marketed as general storage bins. The Shouldah Bin, the Mightah Bin and the Stand & Delivah are no longer available on the protestant‘s website; however, a brochure of the SCOUT storage product line from 2012 indicates the physical measurements of the Shouldah Bin as 16” H x 12”D x 18.75” W, and of the Mightah Bin as 9” H x 9” W x 9” D. Amazon.com lists the dimensions of the Stand & Delivah bin as 14” H, 16” W and 12” D. The Stand & Delivah features long carrying handles akin to a tote or similar bag.
ISSUE:
Whether the instant storage bins are classified in heading 3926, HTSUS, as other articles of plastic, or in heading 9403, HTSUS, as other furniture.
LAW AND ANALYSIS:
The matter protested 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 of the first entry for entries made on or after December 18, 2004. (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. 1401-12-100413 was properly accorded to protestant pursuant to 19 C.F.R. § 174.24(a) because the decision against which the protest was filed is alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee, or with a decision made by CBP with respect to the same or substantially similar merchandise.
Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that classification shall be determined according to the terms of the headings 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 or notes do not require otherwise, the remaining GRIs 2 through 6 may be applied.
The HTSUS provisions under consideration are as follows:
3926: Other articles of plastics and articles of other materials of headings 3901 to 3914:
3926.90: Other: 3926.90.99: Other …..
* * * *
9403: Other furniture and parts thereof:
Furniture of other materials, including cane, osier, bamboo or similar materials:
9403.89: Other:
9403.89.60: Other…..
* * * *
Note 2 to Chapter 39 provides, in pertinent part, as follows:
2. This chapter does not cover:
(x) Articles of chapter 94 (for example, furniture, lamps and lighting fittings, illuminated signs, prefabricated buildings);
Legal Note 2 to Chapter 94 provides:
The articles (other than parts) referred to in headings 9401 to 9403 are to be classified in those headings only if they are designed for placing on the floor or ground.
* * * *
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 these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The General Explanatory Notes to Chapter 94 state, in pertinent part, as follows:
For the purposes of Chapter 94, the term "furniture" means:
Any "movable" articles (not included under other more specific headings of the Nomenclature), which have the essential characteristic that they are constructed for placing on the floor or ground, and which are used, mainly with a utilitarian purpose, to equip private dwellings, hotels, theatres, cinemas, offices, churches, schools, cafés, restaurants, laboratories, hospitals, dentists, surgeries, etc. …(It should be noted that, for the purposes of this Chapter, articles are considered to be " movable " furniture even if they are designed for bolting, etc., to the floor, e.g., chairs for use on ships).
(B) The following:
(i) Cupboards, bookcases, other shelved furniture and unit furniture, designed to be hung, to be fixed to the wall or to stand one on the other or side by side, for holding various objects or articles (books, crockery, kitchen utensils, glassware, linen, medicaments, toilet articles, radio or television receivers, ornaments, etc.) and separately presented elements of unit furniture.
The General ENs to Chapter 94 further note that:
Except for the goods referred to in subparagraph (B) above, the term "furniture" does not apply to articles used as furniture but designed for placing on other furniture or shelves or for hanging on walls or from the ceiling
* * * *
If the subject articles are classifiable in Chapter 94, they are excluded from Chapter 39 pursuant to Note 2(x) to Chapter 39. We must therefore first determine if the subject merchandise constitutes “furniture” within the meaning of heading 9403, HTSUS. The term “furniture” is not defined in the tariff; however, Note 2 to Chapter 94 states that the articles of headings 9401 to 9403 must be designed for placement on the floor or ground. The General ENs to Chapter 94 further elaborate that articles of furniture within the meaning of that Chapter must also be “moveable”, used to equip private dwellings, offices, etc., and not designed for placing on other furniture or shelves.
As the subject merchandise is not specifically enumerated in the HTSUS or ENs as an example of furniture covered by Chapter 94, whether the subject storage bins may be considered furniture for the purposes of heading 9403 depends on whether they are movable articles designed for placing on the floor or ground.
The subject Bungalow bins are lightweight and fitted with handles, and are thus moveable articles. They are also suitable for placing on the ground. However, the Hang-10 Bin, Rump Roost, Junque Trunk, Mightah Bin, Shouldah Bin and the Stand & Delivah are not designed to be specifically floor standing, as they are equally suitable for placement on the floor, on a shelf, or in the trunk of a car. The size and weight of the bins makes them ideal for placing on a shelf, and they further lack features such as castors, or a greater size and weight, that would necessitate their placement on the floor. Furthermore, they are not advertised, marketed or sold as furniture, nor used for long-term storage or to equip a private dwelling, office, etc. as a coffee table, end table, lamp or plant stand. See EN 94.03(1). The Hang-10 bin, for example, is advertised for file storage, the Junque trunk for use in car trunks, and the Rump Roost bins as stackable storage for shelves, linen closets, foyers, etc. See http://www.scoutbags.com/storage?limit=all.
CBP has held consistently that articles of furniture of heading 9403, HTSUS, must be specifically designed for placing on the ground, as opposed to merely having the capacity to be placed on the ground. Accordingly, CBP has consistently classified multipurpose storage bins of a comparable size outside of Chapter 94, according to their constituent materials. See e.g., HQ H030657, dated July 01, 2009; HQ W968416, dated August 28, 2007; HQ 957272, dated March 13, 1995; NY N048378, dated January 8, 2009; NY N007031, dated March 1, 2007; NY M84635, dated June 30, 2006; NY R03082, dated February 8, 2006; NY R02025, dated June 9, 2005; NY L84098, dated April 19, 2005; and NY J85274, dated June 5, 2003.
In HQ H030657, HQ 957272 and NY R02025, placement in Chapter 94 was considered and explicitly rejected on the grounds that the bins were not designed for placement on the floor or ground, as opposed to on a shelf or on a counter. In contrast, storage bins have been classified as articles of furniture when their size or other physical features made them unsuitable for placing on a shelf or on other furniture. For instance, in NY D89345, dated March 17, 1999, a toy storage cart with castors attached was found to fall under heading 9403; the castors allowed the cart to be rolled on the floor, and would make it clearly unsuitable for storage on a shelf or counter. In NY I80659, dated April 26, 2002, a wooden rack measuring 26” H x 30 13/16 ”W x 11 7/16” D with a set of 6 wooden bins, each measuring 5 1/8” H x 13 3/16” W x 12” D, was classified as furniture under heading 9403, HTSUS; the size of the wooden rack and bins in this case would have necessitated their placing on the floor. In NY N050824, dated February 18, 2009, the Bungalow “Smash Cache” bin was correctly classified in 9403, HTSUS, because its physical features—namely, plastic insulation and a zipper top to store laundry and keep drinks cold for parties--indicated that it would be primarily placed on the ground.
We find that the the Hang-10 Bin, Rump Roost, Junque Trunk, Mightah Bin, Shouldah Bin and the Stand & Delivah are similar to those multipurpose articles classified previously outside of heading 9403, according to their constituent materials, and are therefore not classifiable as articles of furniture of heading 9403, HTSUS.
Protestant argues that New York Ruling Letter (NY) M84092, dated June 12, 2006, issued to Bungalow, is dispositive of the classification of the instant bins. In NY M84092, CBP classified two styles of bins by Bungalow in heading 9403, HTSUS. They were described as “two collapsible bins made of 100% Polypropylene. The first bin measures 15" x 24" x 15". The second bin measures 12" x 13" x 12". They are designed to stand on the floor and used for the storage of magazines, pet food, and toys, or for home storage, home office, utility and laundry.” NY M84092, however, did not specify the order in which the dimensions were listed. The dimensions of the first bin at issue in NY M84092—15” x 24” x 15”—may be identical to the dimensions of the Rump Roost and Junque Trunk bins at issue in the current protest, or they may be identical to Bungalow’s “Trash Cache” bin, which measures H 24" x D 15" x W 15". Thus, from the information available to us, we cannot determine if the merchandise at issue in NY M84092 is the same or substantially similar to the products at issue. Therefore, NY M84092 cannot be dispositive as to the classification of these items.
The Bungalow bins are constructed of 100% polypropylene. The bins are suitable for us in a home or office, school or dorm, and similar environments. Not being exclusively for household use, they are classified in heading 3926, HTSUS, as other articles of plastic.
HOLDING:
By application of GRI 1, the plastic storage crates and bins under consideration are correctly classified under heading 3926, HTSUS, in subheading 3926.90.99, which provides for: "Other articles of plastics and articles of other materials of headings 3901 to 3914: Other: Other." The 2012 column one, general rate of duty rate of duty is 5.3% ad valorem.
You are instructed to deny the protest. In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will make the decision available to CBP personnel and to the public online at
http://www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division