CLA-2:CO:R:C:M 956486 JAS
Ms. Judy Campbell
W. Y. Moberly, Inc.
Box 164
Sweetgrass, MT 59484
RE: Cup Concession Stand; Metal Refreshment Stand in Shape of
Coca-Cola Cup; In-Door Out-Door Stand for Selling Drinks,
Foodstuffs and Memorabilia; Metal Furniture; Structures of
Iron or Steel, Heading 7308, Section XV, Note 1(k)
Dear Ms. Campbell:
In your letter, dated March 29, 1994, on behalf of Shelby
Associated Securities, Inc., Calgary, you inquire as to the
tariff classification of the Cup Concession Stand from Canada.
Descriptive literature was submitted.
FACTS:
The article in question is a concession stand of sheet metal
and steel tubing construction, resting on casters. It is used in
shopping malls, airports, amusement parks, fairs and similar
locations, inside and outside, to sell cold drinks, foodstuffs
and memorabilia. These actual stands will be used in Atlanta
during the 1996 Olympics for selling food, drink and
commemoratives. In the overall configuration of a Coca-Cola cup,
the stand weighs 1,500 lbs., is 10 feet high in the upright
operational position and collapses to 83 inches while in transit.
It consists of a top portion and bottom portion connected at the
back to leave the middle open for one or more concessionaires.
The top portion of the cup has a diameter of 7 ft. 8 in. and
plastic signage that flashes Enjoy Coca-Cola. The bottom portion
of the cup functions as the countertop.
The stand is equipped with plumbing and electrical hookups
and operates on a single phase power source. A carbonator, ice
chest and syrup dispensing head, all of United States origin, are
sent to Canada and incorporated into the stand which is otherwise
of Canadian origin. In operation, water from a municipal hookup
is chilled as it is piped through the ice chest to the - 2 -
carbonator, the carbonated water then moving to the syrup
dispensing head or tap on the countertop. The concession stand
is wired to accommodate hot dog roasters, hot chocolate and
pretzel machines but these are not a part of this importation.
ISSUE:
Whether the concession stand is furniture for tariff
purposes.
LAW AND ANALYSIS:
Merchandise is classifiable under the Harmonized Tariff
Schedule of the United States (HTSUS) in accordance with the
General Rules of Interpretation (GRIs). GRI 1 states in part
that for legal purposes, classification shall be determined
according to the terms of the headings and any relative section
or chapter notes, and provided the headings or notes do not
require otherwise, according to GRIs 2 through 6.
Heading 7308, a provision for structures of iron or steel,
and heading 9403, a provision for other furniture and parts
thereof, are under consideration here. Customs has previously
classified garden gazebos and other articles compellingly
analogous to the instant concession stand in heading 7308.
However, articles of chapter 94 are among the goods excluded from
section XV (which includes chapter 73). Section XV, Note 1(k),
HTSUS. Therefore, if heading 9403 is found to apply, heading
7308 is eliminated from consideration.
The Harmonized Commodity Description And Coding System
Explanatory Notes (ENs) constitute the Customs Cooperation
Council's official interpretation of the Harmonized System.
While not legally binding on the contracting parties, and
therefore not dispositive, the ENs provide a commentary on the
scope of each heading of the Harmonized System and are thus
useful in ascertaining the classification of merchandise under
the System. Customs believes the notes should always be
consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23,
1989).
Relevant ENs at p. 1574 state, in part, that for purposes of
chapter 94 the term "furniture" means movable articles 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 hotels, theatres, cinemas, cafes
and restaurants, among other locations. Similar articles for use
in gardens, squares and promenades are also included in this
category. - 3 -
In our opinion, the Cup Concession Stand comports with the
requirements of this note. It is movable and designed to be
placed on the floor; in addition, it is utilitarian, that is, it
equips or furnishes the environs listed in the cited EN because
it is designed to provide a particular service.
As a good wholly obtained or produced entirely in the
territory of Canada and the United States, the Cup Concession
Stand is eligible for the special tariff treatment accorded an
originating good under the North American Free Trade Agreement
(NAFTA). General Note 12, HTSUS.
HOLDING:
Under the authority of GRI 1, the Cup Concession Stand is
provided for in heading 9403. It is classifiable in subheading
9403.20.00, HTSUS, a provision for other metal furniture. The
rate of duty as an originating good under NAFTA is Free.
Sincerely,
John Durant, Director
Commercial Rulings Division