CLA-2 OT:RR:CTF:TCM H234955 LWF
David Laudon
Venture Products LLC
5800 N. Bayshore Drive
Suite B206
Milwaukee, WI 53217
RE: Tariff classification of an unassembled rolling, elevated garden stand
Dear Mr. Laudon:
This is in reply to your letter of September 7, 2012, to the U.S. Customs and Border Protection (CBP) National Commodity Specialist Division (NCSD) in New York, on behalf of Venture Products LLC (“Venture Products”), seeking a prospective binding tariff classification ruling under the Harmonized Tariff Schedule of the United States (HTSUS), concerning an unassembled rolling, elevated garden stand. Your request was forwarded to this office for response.
FACTS:
Venture Products intends to import from China an unassembled rolling, elevated garden stand constructed of wood and steel and equipped with wheels. See Fig. 1 (below). The stand is identified on the importer’s website as the “LGarden” and features an elongated, V-shaped container bed of vinyl-lined wood, in which up to 15 mature vegetable plants may be grown. Assembled, the container bed rests atop a reinforced steel carriage capable of supporting up to 500 pounds of soil and plants; a steel shelf located beneath the container bed provides additional storage surface. The LGarden offers approximately 12 square feet of gardening space and stands 32 inches in height. Four casters are attached to the bottom of the frame and enable the LGarden to be easily moved around patio, deck, or balcony environments.
Fig. 1: Assembled, elevated garden stand—the “LGarden”
ISSUE:
Whether the unassembled rolling, elevated garden stand is classified in heading 9403, HTSUS, as other furniture, or heading 7326, HTSUS, as an other article of iron or steel. Whether the merchandise qualifies for duty free treatment under subheading 9817.00.50, HTSUS, as equipment to be used for agricultural or horticultural purposes.
LAW AND ANALYSIS:
Merchandise imported into the United States is classified under the HTSUS. 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 provision 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 and, unless otherwise required, according to the remaining GRIs taken in their appropriate order.
The HTSUS headings under consideration are the following:
7326 Other articles of iron or steel:
9403 Other furniture and parts thereof:
9817.00.50 Machinery, equipment and implements to be used for agricultural or horticultural purposes
* * * * *
Note 2 to Chapter 94 states, in pertinent part, the following:
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.
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The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While not legally binding, the ENs provide a commentary on the scope of each heading of the HS and are thus useful in ascertaining the proper classification of merchandise. It is CBP’s practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The General EN to Chapter 94 states that 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,… Similar articles (seats, chairs, etc.) for use in gardens, squares, promenades, etc. are also included in this category.
The following:
Cupboards, bookcases, other shelved furniture (including single shelves presented with supports for fixing them to the wall) 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.
Seats or beds designed to be hung or to be fixed to the wall.
Except for the goods referred to in subparagraph (B) above, the term “furniture” does not apply to article used as furniture but designed for placing on other furniture or shelves or for hanging on walls or from the ceiling.
…
Headings 94.01 to 94.03 cover articles of furniture of any material (wood, osier, bamboo, cane, plastics, base metals, glass, leather, stone, ceramics, etc.). Such furniture remains in these headings whether or not stuffed or covered, with worked or unworked surfaces, carved, inlaid, decoratively painted, fitted with mirrors or other glass fitments, or on castors, etc.
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EN 94.03 provides, in pertinent part, as follows:
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, tables, telephone stands, writing-desks, escritores, 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 furnitures for:
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; foot-stools, fire screens; draught-screens; pedestal ashtrays; music cabinets, music stands or desks; play-pens; serving trolleys (whether or not fitted with a hot plate).
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Heading 9403, HTSUS, provides, in relevant part, for “Other furniture and parts thereof.” The term “furniture” is not defined in the Nomenclature; however, the Notes and ENs to Chapter 94, HS, provide numerous examples of the types of articles classified under heading 94.03, HS, and the common physical characteristics which those articles must share. Note 2 to Chapter 94, HS, states, in relevant part, that articles referred to in heading 94.03, HS, must be designed for placing on the floor or ground. Additionally, the EN to Chapter 94, HS, explains that the term “furniture” describes, “any ‘movable’ articles (not included under other more specific headings of the Nomenclature),” which are “used, mainly with a utilitarian purpose, to equip private dwellings, hotels, theatres, [etc…]”; the EN to Chapter 94, HS, also states that “similar articles (seats, chairs, etc.) for use in gardens, squares, promenades, etc., are also included in this category.” See EN to Chapter 94, HS. Consequently, as an initial matter, CBP notes that the scope of heading 9403, HTSUS, includes articles that are designed for placing on the floor or ground and that are also used mainly with a utilitarian purpose in either inside or outside environments.
CBP observes that the U.S. Court of International Trade (CIT) in Pomeroy Collection, Inc. v. United States, 893 F. Supp. 2d 1269, 1283 (Ct. Int’l Trade 2013) (“Pomeroy”) recently provided guidance on the nature of merchandise described as “furniture” of Chapter 94, HS, and has emphasized that for an article to be classified as “furniture” of heading 9403, HTSUS, the article’s “utilitarian purpose” must not be subsidiary to its decorative or ornamental function. Specifically, the CIT in Pomeroy considered, in relevant part, whether various floor and wall articles used for the display of candles were properly classified as “other furniture” of heading 9403, HTSUS, and stated that the EN to Chapter 94, HS, emphasizes that items classified as furniture are those “mainly with a utilitarian purpose.” Pomeroy, 893 F. Supp. 2d at 1284. Moreover, the CIT noted that the nature of the items listed in the EN for heading 94.03, HS, further underscored the “seminal notion of utility.” Id. (defining the term “utilitarian” to mean “of, pertaining to, consisting in utility; aiming at utility, as distinguished from beauty, ornament.” Webster’s New International Dictionary (2d ed. 1953)).
The CIT in Pomeroy approvingly cited Furniture Import Corp. v. United States, 56 Cust. Ct. 125, 133, C.D. 2619 (1966), as an illustration of “the longstanding trend of courts, even under prior tariff systems, to construe ‘furniture’ as limited to articles that are ‘for the use, convenience, and comfort of the house dweller and not subsidiary articles designed for ornamentation alone.’” Pomeroy, 893 F. Supp. 2d at 1284; see also Sprouse Reitz & Co. v. United States, 332 F. Supp. 209, 67 Cust. Ct. 209, C.D. 4276 (1971) (discussing the distinction between utilitarian and decorative articles for purposes of determining whether goods fall within the common meaning or TSUS headnote definite of “furniture”). In Furniture Import, the U.S. Customs Court considered whether sconces that were designed to hold either plants or wax candles were classifiable as “furniture” under the applicable tariff system and ruled that the term “furniture,” as used within the Nomenclature, “embraces articles of utility which are designed for the use, convenience, and comfort of the dweller in a house,” as distinguished from articles that are “subsidiary adjuncts and appendages designed for the ornamentation of a dwelling or business place, or which are of comparatively minor importance so far as use, comfort and convenience are concerned.” Furniture Import Corp., 56 Cust. Ct. at 132. Specifically, the U.S. Customs Court noted that the mere fact that the sconces were designed to hold other decorative articles—i.e. plants or candles—did not convert the sconces from ornamental articles into utilitarian ones, even if the sconces were indeed “useful” to hold ornamental objects. Pomeroy, 893 F. Supp. 2d at 1284. Because the Furniture Import sconces were determined to be ornamental rather than utilitarian, the court concluded that the sconces were not classifiable as “furniture” under the applicable tariff system. See Furniture Import Corp., 56 Cust. Ct. at 133, 136. Consequently, under the reasoning set forth in Furniture Import, the CIT decided in Pomeroy that floor and wall articles were not classified as furniture of heading 9403, HTSUS, because the articles were not constructed with “‘mainly with a utilitarian purpose’ (and are instead more decorative and ornamental in nature).” Pomeroy, 893 F. Supp. 2d at 1285.
In accord with the courts’ interpretation of the meaning of the term “furniture,” CBP will similarly evaluate whether the article’s utilitarian function is paramount to its decorative or ornamental characteristics when considering whether such article is classifiable as furniture of heading 9403, HTSUS. As set forth above, the assembled LGarden consists of a wooden and steel elevated gardening stand that is equipped with shelving for additional storage and four casters that allow for the easy movement of the LGarden around patio, deck, or indoor growing environments. The LGarden provides twelve (12) square feet of gardening space in an elongated, V-shaped container bed of vinyl-lined wood, in which a user may grow up to 15 mature vegetable plants, and although plants grown in the LGarden may provide some decorative or ornamental value, the supporting steel carriage and shelving unit is primarily designed to be capable of carrying up to 500 pounds of soil, plants, and related supplies. When considered in total, therefore, CBP finds that the sturdy construction of the LGarden’s steel frame and secondary shelving unit, combined with the presence of casters along the bottom of the LGarden, provide sufficient evidence to identify the LGarden as an article “mainly with a utilitarian purpose,” as described by the EN to 94.03, HS. See Pomeroy, 893 F. Supp. 2d at 1284. Specifically, the LGarden allows a user to equip an indoor or outdoor space for the movable cultivation of plants and the storage of their related supplies.
Pursuant to the CIT’s holding in Pomeroy, CBP finds that the instant LGarden is properly described as an article of furniture of heading 9403, HTSUS, because it is constructed for placing on the floor or ground and exhibits the “mainly utilitarian purpose” of equipping indoor or outdoor environments for the movable cultivation of plants and the storage of their related supplies. See Note 2 to Chapter 94, HTSUS; EN to Chapter 94, HS. Similar to the exemplars listed in the EN to heading 94.03, HS—which includes, for example, cabinets, chests, and tables—the LGarden’s steel frame and secondary shelving provide for the storage of supplies related to the article’s primary function. Moreover, CBP notes that its consideration of the instant LGarden is consistent with its previous determination in Headquarters Ruling Letter (“HQ”) 952403, dated December 11, 1992, in which CBP classified two and three-tiered movable indoor lighted garden systems in heading 9403, HTSUS. Similar to the instant LGarden, CBP ruled in HQ 952403 that garden systems consisting, in pertinent part, of a growing tray atop a supporting metal frame with additional shelving, were designed for the utilitarian purpose of equipping indoor areas for the cultivation of plants. Based on the foregoing, therefore, CBP finds that the LGarden is similarly classified as other furniture of heading 9403, HTSUS. Because the LGarden is most-specifically provided for in heading 9403, HTSUS, Note 1(k) to Section XV, HTSUS, instructs that the LGarden cannot be classified in heading 7326, HTSUS, as other articles of iron or steel.
As a final matter, CBP notes that certain articles may be entitled to duty-free treatment under subheading 9817.00.50, HTSUS, if the articles are used for agricultural or horticultural purposes. Subheading 9817.00.50, HTSUS, is an actual use provision that affords duty-free treatment for, “Machinery, equipment and implements to be used for agricultural or horticultural purposes.” See HQ 083930, dated May 19, 1989. In order for an article to fall within the special provisions of Chapter 98, HTSUSA, the following three-part test must be met:
The article in question must not be excluded from the heading under Section XXII, Chapter 98, Subchapter XVII, U.S. Note 2, HTSUSA.
(2) The terms of the headings must be met in accordance with GRI 1, HTSUSA, which provides that classification is determined according to the terms of the headings and any relative section or chapter notes.
(3) The article must comply with the actual use provision requirements of sections 10.131-10.139, Customs Regulations (19 CFR §§ 10.131-10.139).
The first part of the test requires that the LGarden not be excluded from subheading 9817.00.50, HTSUS, under Section XXII, Chapter 98, Subchapter XVII, U.S. Note 2, HTSUS. As stated above, the LGarden is provided for under heading 9403, HTSUS. This heading is not excluded from classification in heading 9817.00.50, HTSUS, by operation of Section XXII, Chapter 98, Subchapter XVII, U.S. Note 2.
The second part of the test requires the LGarden be “machinery, equipment, [or] implements” used for “agricultural or horticultural purposes.” As such, the initial determination to be made is what agricultural or horticultural pursuit is in question. The LGarden assists in the cultivation vegetables, flowers, herbs, or other small plants in a garden environment. This is a horticultural pursuit.
The third part of the test requires that Venture Products meet the actual use requirements of 19 C.F.R. §§ 10.131 through 10.139. Consequently, if the requirements of 19 C.F.R. §§ 10.131 through 10.139 are satisfied in combination with the first two criteria, the subject merchandise will qualify for duty-free entry as agricultural or horticultural equipment, under Chapter 98, HTSUS.
HOLDING:
By application of GRIs 1 and 6, Venture Products’ LGarden unassembled, elevated gardening stand is classified in heading 9403, HTSUS, specifically under subheading 9403.20.00, HTSUS, which provides for “Other furniture and parts thereof: Other metal furniture.” The 2014 column one, general rate of duty is free.
The LGarden is also eligible for duty-free treatment under heading 9817.00.50, HTSUS, provided the actual use requirements of 19 C.F.R. §§ 10.131 through 10.139 are satisfied.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division