CLA-2 OT:RR:CTF:TCM HQ H265042 NCD
U.S. Customs and Border Protection
Port of Detroit
2810 B West Fort Street
Detroit, MI 48216
Attn: Randal Ernst, Import Specialist
Re: Protest and Application for Further Review No: 3801-13-100448; Classification of “Gorilla Pipes”
Dear Port Director:
The following is our decision as to Protest and Application for Further Review No. 3801-13-100448, timely filed on September 27, 2013 on behalf of SRL Investments (London), Inc. (“SRL Investments” or “Protestant”), concerning classification of “Gorilla Pipes” under the Harmonized Tariff Schedule of the United States (HTSUS). The merchandise at issue was entered with and liquidated by U.S. Customs and Border Protection (CBP) at the Port of Detroit (“the Port”). Protestant asserts that CBP’s classification of the subject merchandise at liquidation is incorrect.
According to the instant protest, as well as a Department of Commerce scope ruling pertaining to identical merchandise, the subject Gorilla Pipes consist of various interconnecting extruded aluminum tubes and steel bases. See Final Scope Ruling on Traffic Brick Network, LLC’s Event Décor Parts and Kits, A-570–967, C-570–968 (Dec. 2, 2013), available at http://enforcement.trade.gov/download/prc-ae/scope/35-event-decor-parts-kits-5dec13.pdf (last visited May 16, 2016). When fully assembled, these tubes and bases form the structural frames of “display systems” for use as backdrops and/or display booths at events such as wedding receptions and conventions (see Figure 1). See id. at 6. The extruded aluminum tubes are of two types, uprights and crossbars, the latter of which form the tops of the structural frames and are suitable for hanging drapery, lighting, and other adornments. The crossbars are fitted with spring-loaded button-stop locks for telescoping, as well as hooks at their ends that enable attachment to the uprights. See id. The uprights, some of which also telescope, have slits at their top ends to accommodate the end hooks of the uprights. See id. These slits appear to have been incised by cutting. The bases contain pins that slide into the bottom ends of the uprights and provide for the latter’s secure placement on the ground.
Each upright, crossbar, and base is designed for use in one or more of three distinct Gorilla Pipe “series” that are distinguishable by the particular dimensions and/or locking mechanisms of their respective uprights. See id. These “series” include the following:
EZ Series, whose uprights are two inches in diameter and are telescoping, with a locking system composed of steel locking collars and ball bearings;
Pro Series, whose uprights are two inches in diameter and are either telescoping, with spring-loaded button-locks and locking clamps, or fixed; and
Valu Series, whose uprights are one-and-a-half inches in diameter and are either telescoping, with spring-loaded button-locks and locking clamps, or fixed varieties.
Gorilla Pipes of all three series are offered for retail sale as individual bases, uprights, and crossbars, in “Pipe Kits” that include the exact quantities of these components required for construction of complete display system structures, and in customizable “Pipe and Drape Kits” that consist of “Pipe Kits” with added drapes selected by individual purchasers. See id. The “Kits” are advertised as “strong and stable enough to support multiple fabric layers, props, lights, etc...” See Event Décor Direct, Complete Pipe & Drape Kits, http://www.eventdecordirect.com/catalog/pipe-drape-complete-pipe-drape-kits-c-29_297.html (last visited May 16, 2016).
The Gorilla Pipes were entered at the Port of Detroit in forty-seven entries between May 14, 2013 and January 13, 2013. Protestant asserts that the Gorilla Pipes at issue were entered both as individual articles and in “Pipe Kits.” However, invoices proffered to the Port upon request list quantities of uprights, crossbars, and bases that do not correspond to the quantities of such included in the Pipe Kits. The proffered invoices pertain to some, but not all, of the entries at issue.
Upon both entry and liquidation, the Gorilla pipes were variously classified in subheading 7326.19.00, which provides for “Other articles of iron or steel: Forged or stamped, but not further worked: Other,” and in subheading 7608.20.00, HTSUS, which provides for “Aluminum tubes and pipes: Of aluminum alloys.” Protestant asserts that the Gorilla Pipes are properly classified in heading 9403, HTSUS, specifically in subheading 9403.20.00, HTSUS, which provides for “Other furniture and parts thereof: Other metal furniture,” and in subheading 9403.90.80, HTSUS, which provides for “Other furniture and parts thereof: Parts: Other: Other.”
Whether the subject Gorilla Pipes are properly classified as “other” articles of steel in heading 7326, HTSUS, as aluminum tubes in heading 7608, HTSUS, or as “other” furniture or parts thereof in heading 9403, HTSUS.
LAW AND ANALYSIS:
Initially, we note that 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. (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. 3801-13-100448 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(a) because Protestant alleges that the decision against which the protest is filed is inconsistent with previous CBP decisions concerning substantially similar merchandise.
Merchandise imported into the United States is classified under the HTSUSA. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes.
GRI 1 requires that classification be determined first 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 heading and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.
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 2016 HTSUS provisions under consideration in the instant case are as follows:
7326 Other articles of iron or steel:
Forged or stamped, but not further worked:
7608 Aluminum tubes and pipes:
7608.20.00 Of aluminum alloys
9403 Other furniture and parts thereof:
9403.20.00 Other metal furniture
As stated above, Protestant asserts that the subject Gorilla Pipes are properly classified in heading 9403, HTSUS, which applies to “other” furniture as well as parts of such furniture. Note 2 to Chapter 94 states, in pertinent part, as follows:
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 EN to Chapter 94 states, in relevant part, as follows:
For the purposes of this Chapter, 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., or ships, aircraft, railway coaches, motor vehicles, caravantrailers or similar means of transport…
This Chapter only covers parts, whether or not in the rough, of the goods of headings 94.01 to 94.03 and 94.05, when identifiable by their shape or other specific features as parts designed solely or principally for an article of those headings. They are classified in this Chapter when not more specifically covered elsewhere.
The HTSUS does not define “furniture” for tariff classification purposes, beyond establishing that it must be designed for placement on the floor or ground. See The Container Store v. United States, 800 F. Supp. 2d 1329, 1335 (Ct. Int’l Trade 2011). However, the EN to Chapter 94 provides that furniture may include “movable furniture” that is used “mainly with a utilitarian purpose.” In view of this, the courts have held that portable articles are classifiable in heading 9403, HTSUS, so long as their predominant functions are utilitarian, in that they lend themselves to particular uses, rather than decorative or ornamental. See The Pomeroy Collection, Ltd. v. United States, 893 F. Supp. 2d 1269, 1283-85 (Ct. Int’l Trade 2013) (citing Furniture Import Corp. v. United States, 56 Cust. Ct. 125, 133 C.D. 2619 (1966)). Notably, however, an article used solely to display ornamental objects remains ornamental itself, and does not qualify as furniture within the meaning of heading 9403. See id. at 1284-85. Consistent with these principles, CBP has classified various portable structures in heading 9403 where they perform utilitarian functions by, for example, displaying or securing lights, retail products, or other non-decorative objects. See, e.g., Headquarters Ruling Letter (HQ) 964916, dated July 27, 2002 (classifying wooden and plastic screens used as partitions in heading 9403); New York Ruling (NY) I89667, dated January 9, 2003 (classifying pop-up display structure with light fixtures in heading 9403); and NY B80536, dated December 31, 1996 and NY 809309, dated April 17, 1995 (both classifying inflatable trade show display booth and office work station designed to display products in heading 9403).
The subject Gorilla Pipes, when purchased in “Pipe Kits” or “Pipe and Drape Kits,” can be assembled to form skeletal structures designed for placement on the floors of venues for wedding receptions, conventions, and other events. The structures can be disassembled and relocated as needed, and their crossbars are suitable for the hanging of various objects. While the “Pipe and Drape Kits” include only drapes, and the product literature emphasizes the structures’ use as drapery holders, the literature also states that they are “strong and stable enough to support multiple fabric layers, props, lights, etc...” Because they are designed to hold drapery, display props, and contribute to the illumination of the rooms in which they are placed, the structures can be described as “utilitarian” within the meaning of the EN to Chapter 94. See NY NI81137, supra. In view of this, the Gorilla Pipes, when in the form of “Pipe Kits” or “Pipe and Drape Kits,” qualify as furniture within the meaning of heading 9403.
However, as stated above, invoices pertaining to the protested entries indicate that the Gorilla Pipes are imported as individual bases, uprights, and crossbars, rather than in the form of complete kits. Protestant asserts that the invoices represent “outlier shipments of missing or replacement/?extension…parts, made pursuant to specific customer requests,” but has presented no evidence, in the form of invoices or otherwise, corroborating this contention. There is thus nothing to indicate that the entries contained anything other than individual uprights, crossbars, and bases. With the exception of the bases, these items are not designed for placement on the floor, and none of the items provide utilitarian value in and of themselves. Consequently, the instant Gorilla Pipes cannot be described as furniture of heading 9403, and are only classifiable in the heading if they can be described as parts of such.
The term “part” is not defined in the HTSUS. In the absence of a statutory definition, the courts have fashioned two distinct but reconcilable tests for determining whether a particular item qualifies as a “part” for tariff classification purposes. Bauerhin Techs. Ltd. Pshp. v. United States, 110 F.3d 774, 779 (Fed. Cir. 1997). Under the test initially promulgated in United States v. Willoughby Camera Stores, Inc. (“Willoughby”), 21 C.C.P.A. 322, 324 (1933), an imported item qualifies as a part only if can be described as an “integral, constituent, or component part, without which the article to which it is to be joined, could not function as such article.” Bauerhin, 110 F.3d at 779. Pursuant to the test set forth in United States v. Pompeo, 43 C.C.P.A. 9, 14 (1955), a good is a “part” if it is “dedicated solely for use” with a particular article and, “when applied to that use…meets the Willoughby test.” Id. (citing Pompeo, 43 C.C.P.A. at 14); Ludvig Svensson, Inc. v. United States, 63 F. Supp. 2d 1171, 1178 (Ct. Int'l Trade 1999) (holding that a purported part must satisfy both the Willoughby and Pompeo tests). Consistent with the Pompeo test, the EN to Chapter 94 provides that parts of heading 9403 must be “identifiable by their shape or other specific features as parts designed solely or principally for an article of [that] heading.”
Here, the individual Gorilla Pipes are in shapes and have features that restrict their use to assembly of complete display structures. For example, the hooks of the crossbars are designed for insertion into the slits of the uprights, which in turn are of specific dimensions suitable for placement atop the pins of certain bases. Left unconnected with each other, these items are completely devoid of utilitarian value. Once joined together to form a complete structure, however, they cannot be removed without the compromising of the structure’s integrity and/or utility. Specifically, removal of the crossbar would eliminate the structure’s capacity to hold objects, while removal of any of the bases and uprights would result in its collapse. Therefore, under both the Willoughby test and Pompeo test, the individual Gorilla Pipes are parts of the complete display structures, which, as discussed above, are described as furniture within the meaning of heading 9403. The Gorilla Pipes are, in effect, prima facie classifiable in heading 9403, HTSUS, as parts of “other” furniture.
With respect to the aluminum uprights and crossbars, we also consider heading 7608, HTSUS, which provides for “[a]luminum tubes and pipes.” Note 1(e) to Chapter 76 states as follows:
In this chapter the following expressions have the meanings hereby assigned to them:
(e) Tubes and pipes
Hollow products, coiled or not, which have a uniform cross section with only one enclosed void along their whole length in the shape of circles, ovals, rectangles (including squares), equilateral triangles or regular convex polygons, and which have a uniform wall thickness. Products with a rectangular (including square), equilateral triangular or regular convex polygonal cross section, which may have corners rounded along their whole length, are also to be considered as tubes and pipes provided the inner and outer cross sections are concentric and have the same form and orientation. Tubes and pipes of the foregoing cross sections may be polished, coated, bent, threaded, drilled, waisted, expanded, cone-shaped or fitted with flanges, collars or rings.
Note 1(e) to Chapter 76 sets out a finite list of processes to which aluminum tubes and pipes may be subjected following obtention. Pursuant to this, aluminum extrusions that are incised by means other than drilling, or are fitted with any additions beyond flanges, collars, or rings do not qualify as “tubes” or “pipes” within the meaning of heading 7608, HTSUS. See NY N244207, dated August 13, 2013 (classifying telescoping aluminum poles with flip locks outside of heading 7608); and NY N250186, dated March 3, 2014 (similarly classifying aluminum tubes fitted with handgrips in heading 7616, HTSUS); cf. NY N261742, dated February 26, 2015 (classifying aluminum tubes with crimped ends outside of heading 7608); and NY E89148, dated November 16, 1999 (excluding aluminum tubes with indentations along their lengths from heading 7608).
Of the aluminum extrusions at issue, the crossbars are fitted with both locks and hooks and the aluminum uprights have slits that appear to have been incised by cutting, rather than drilling. Additionally, uprights of the EZ Series and some uprights of the Valu Series and Pro Series have been fitted with locks for telescoping. Because none of these additions and alterations are listed as permissible processing steps in Note 1(e) to Chapter 76, the crossbars and uprights cannot be described as “tubes and pipes” within the meaning of heading 7608, HTSUS.
Finally, with respect to the steel bases, we consider heading 7326, which applies to “[o]ther articles of iron or steel.” EN 73.26 states, in relevant part, as follows:
This heading covers all iron or steel articles obtained by forging or punching, by cutting or stamping or by other processes such as folding, assembling, welding, turning, milling or perforating other than articles included in the preceding headings of this Chapter or covered by Note 1 to Section XV or included in Chapter 82 or 83 or more specifically covered elsewhere in the Nomenclature.
It is undisputed that of the various types of Gorilla Pipes at issue, the uprights and crossbars are aluminum alloy whereas the bases are steel. In effect, only the bases can be described as “other articles of steel.” However, because the bases are more specifically covered elsewhere in the Nomenclature, they are, in accordance with EN 73.26, also excluded from heading 7326. See, e.g., HQ H207578, dated May 13, 2013 (classifying valve cable supports as parts of machinery for the manufacture of plastics in heading 8477, rather than in heading 7326).
In view of the foregoing, the subject Gorilla Pipes are classified in heading 9403 as parts of “other furniture.” This result is consistent with the General EN to Chapter 94, according to which parts of furniture “are classified in this Chapter when not more specifically covered elsewhere.” It is also consistent with CBP precedent. See NY N269762, dated November 6, 2015 (classifying base for display stand in subheading 9403.90.80, HTSUS).
By application of GRI 1, the subject Gorilla Pipes are classified in heading 9403, HTSUS, specifically in heading 9403.90.8041, HTSUSA (Annotated), which provides for “Other furniture and parts thereof: Parts: Other: Other: Other: Of metal: Other.” The 2016 general column one rate of duty for subheading 9403.90.8041, HTSUSA, is free.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at www.usitc.gov/tata/hts/.
You are instructed to ALLOW 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 CBP Form 19, to the Protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP website at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Myles B. Harmon, Director
Commercial and Trade Facilitation Division