CLA-2 OT:RR:CTF:TCM 030657 CkG
Port Director
Customs and Border Protection
Port of Seattle
1000 Second Ave., Suite 2100 Seattle, WA 98104
RE: Application for Further Review of Protest Number 3001-2008-100156;
classification of fabric storage bins
Dear Port Director,
This is in response to the Application for Further Review of Protest Number 3001-2008-100156, filed on behalf of the importer, Target Stores (‘Protestant”), contesting Customs and Border Protection’s (CBP) classification and liquidation of five entries of fabric storage bins under subheading 6307.90.9889 of the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The protest describes five entries on January 13, 2006, December 21, 2006, December 28, 2006, December 29, 2006, and January 1, 2007. On November 2, November 9, November 16 and November 23 of 2007, CBP liquidated the subject article in subheading 6307.90.98, HTSUS, which provides for: “Other made up articles, including dress patterns: Other: Other: Other.” Protestant claims the proper classification is in subheading 9403.89.60, HTSUS, which provides for: “Other furniture and parts thereof: Furniture of other materials, including cane, osier, bamboo or similar materials: Other: Other.”
The storage bins at issue come in four styles. Three styles are made of a steel wire frame covered with fabric, and measure 17”L x 14”W and 10”H. The fourth style differs only in that the frame is made of wood. The bins come with or without handles.
ISSUE:
Whether the subject storage bins are classified in heading 9403, HTSUS, as “Other furniture”, or heading 6307, as “Other made up articles”.
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. 3001-2008-100156 was properly accorded to Protestant pursuant to 19 C.F.R. § 174.24 because the decision against which the protest was filed involves specific factual and legal questions that have not been the subject of a Headquarters ruling or court decision. Specifically, the issue is whether the subject article is an item of furniture classifiable in Chapter 94.
Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification 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.
The Harmonized Commodity Description and Coding System Explanatory Notes
(EN), 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 the headings. It is CBP’s practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The 2007 HTSUS provisions under consideration are as follows:
6307: Other made up articles, including dress patterns:
6307.90: Other:
Other:
6307.90.98: 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:
9403.89.6010: Household
* * * * * * *
Note 1(s) to Section XI states that the section does not cover:
Articles of chapter 94 (for example, furniture, bedding, lamps and lighting fittings);
Legal Note 2 to Chapter 94 further 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 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 the scope of Section XI, which includes Chapter 63. In accordance with Note 1(s) to Section XI, we must therefore determine if the subject merchandise constitutes “furniture” within the scope of heading 9403, HTSUS. The term “furniture” is not defined in the tariff, however Note 2 to Chapter 94 states that articles of heading 9401 to 9403 must be designed for placement on the floor or ground. The ENs explain that the articles must also be “moveable.” Furthermore, the subject merchandise is not specifically enumerated in the ENs as an example of furniture covered by Chapter 94. Whether the subject storage bins may be considered furniture for the purposes of that Chapter thus depends on whether they are movable articles designed for placing on the floor or ground.
The subject articles can clearly be placed either on the ground or on a shelf; they do not appear to be specially designed for either use. According to the importer, their large size and steel and wood frames necessitate the placing of the bins on the floor. However, the lack of handles on some of the styles make those bins unsuitable for use on a floor, making them difficult to lift off the ground. Furthermore, Customs has previously classified storage bins of a comparable size in Heading 6307 and other provisions outside of Chapter 94, according to their constituent materials. See e.g., 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 two of these cases, HQ 957272 and NY R02025, placement in Chapter 94 was considered and explicitly rejected on the grounds that the bins were not designed for placing on the floor, as opposed to on a shelf or on a counter. Bins that have been classified as articles of furniture were considerably larger or unable to be placed on a shelf. 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 measuring 5 1/8” (h) x 13 3/16” (w) x 12” (d) was classified as furniture under Heading 9403, because the size of the wooden rack and bins necessitated their placing on the floor.
Some of the instant bins do not have handles, and while not dispositive, this fact mediates against the protestant’s claim that they are designed for storage on the floor or ground. Furthermore, even the styles that do have handles lack an additional feature such as castors, or a greater size and weight, that would necessitate their placement on the floor.
We find that the subject bins are similar to those classified previously outside of Heading 9403. In light of the multipurpose design of the bins, we conclude that they are not classifiable as articles of furniture of heading 9403, HTSUS.
The subject bins are made of steel wire and wood frames covered with fabric, and are thus composite goods. GRI 3(b) provides that composite goods consisting of different materials or made up of different components, shall be classified as if they consisted of the material or component which gives them their essential character. EN VIII to GRI 3(b) explains that "[t]he factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of the constituent material in relation to the use of the goods." Recent court decisions on the essential character for 3(b) purposes have looked primarily to the role of the constituent material in relation to the use of the goods. See Better Home Plastics Corp. v. U.S., 915 F. Supp. 1265 (CIT 1996), aff’d 119 F. 3d 969 (Fed. Cir. 1997); Mita Copystar America, Inc. v. U.S., 966 F.Supp. 1245 (CIT 1997), rehear’g denied, 994 F. Supp. 393 (1998); Vista Int’l Packing Co. v. U.S., 890 F. Supp. 1095 (CIT 1995). While the wood and wire frames provide support and shape to the bins, it is the textile component which performs the primary function of storing and holding articles. The canvas alone could perform this task. The essential character of the subject bins is thus imparted by the canvas fabric. See e.g., NY N007031, dated March 1, 2007.
By application of GRI 3(b), the subject articles are thus classifiable in Heading 6307, HTSUS. In the absence of a more specific provision, the bins are classifiable in subheading 6307.90.98, HTSUS, as “other made up articles.”
HOLDING:
By application of GRI 3(b), the subject storage bins are classified in heading 6307, HTSUS, specifically in subheading 6307.90.98, HTSUS, which provides for “Other made up articles, including dress patterns: Other: Other: Other: Other.” The 2007 column one, general rate of duty is 7%.
You are instructed to deny the protest in full. 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 on the CBP Home Page on the World Wide Web at 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