CLA-2-94:OT:RR:NC:N4:433
Donald S. Stein,
Greenberg Traurig, LLP
Attorneys at Law
2101 L Street, Suite 1000
Washington, D.C. 20037
RE: The tariff classification of wooden furniture from China.
Dear Mr. Stein:
In your letter dated February 9, 2016, on behalf of Haverty Furniture Companies, Inc., you requested a tariff classification ruling. Descriptive and illustrative literature were provided.
Item 1 is described as the “Orleans” executive desk, and is identified by SKU # 0-4000-2711, SKU # 0-4000-2712 and SKU #0-4000-2713. The three SKU numbers are all a component of the executive desk. The item is essentially made of wood. This item is sold under the category of Haverty’s – Home Office Furniture.
Item 2 is described as the “Orleans” file cabinet, and is identified by SKU # 0-4000-2719. The item is essentially made of wood. This item is sold under the category of Haverty’s – Home Office Furniture.
When terms are not defined in the Harmonized Tariff Schedule of the United States (HTSUS) or the Explanatory Notes (ENs) to the HTSUS, they are construed in accordance with their common and commercial meaning – Nippon Kogasku (USA), Inc. v. United States, 69 CCPA 89, 673 F.2d 380 (1982). Common and commercial meaning may be determined by consulting dictionaries, lexicons, scientific authorities and other reliable sources. C.J. Tower & Sons v. United States, 69 CCPA 128, 673 F.2d 1268 (1982).
The Online Oxford English Dictionary defines “office” at 6 a. A room, set of rooms, or building used as a place of business for non-manual [work]; a room or department for clerical or administrative work. Also (in extended use): the staff of such a room, department, etc. With emphasis on the word [work], The Online Oxford English Dictionary defines “work” at 4. Action or activity involving physical or mental effort and undertaken in order to achieve a result, esp. as a means of making one’s living or earning money; labour; one’s regular occupation or employment.
With definitions in order, the fact that one makes his or hers home into a “home office” versus having one’s office in a separate building dedicated to work is not dispositive that office furniture cannot be used in one’s home. Proceeding from this understanding, there is no dispute that the desk and file cabinet are classified under heading 9403, HTSUS, as furniture. According to GRI 6, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings. Under heading 9403, HTSUS, there are four separate subheadings for wooden furniture. Subheadings 9403.30, HTSUS, 9403.40, HTSUS, and 9403.50, HTSUS, each provide for wooden furniture of a kind used in offices, kitchens and bedrooms, respectively. Subheading 9403.60, HTSUS, is a residual provision for other wooden furniture. If the desk is not classifiable in subheadings 9403.30 through 9403.50, HTSUS, it will be classified in subheading 9403.60, HTUS.
In The Pomeroy Collection, Ltd. v. United States, 559 F.Supp. 2d 1374, 1394 n. 23 (Ct. Int’l Trade 2008), the Court of International Trade (CIT) described different types of HTSUS provisions as follows: A “use” provision is “a provision describing articles by the manner in which they are used as opposed to by name,” while an eo nomine provision is one “in which an item is identified by name.” Len-Ron Mfg. Co. v. United States, 334 F.3d 1304, 1308 (Fed. Cir. 2003). And there are two types of "use" provisions – “actual use” and “principal (formerly known as “chief”) use.” An “actual use” provision is satisfied only if “such use is intended at the time of importation, the goods are so used and proof thereof is furnished within 3 years after the date the, goods are entered.” See Additional U.S Rule of Interpretation (“ARI”) 1(b) (quoted in Clarendon Mktg., Inc. v. United States, 144 F.3d 1464, 1467 (Fed. Cir. 1998)). In contrast, a “principal use” provision functions essentially “as a controlling legal label, in the sense, that even if a particular import is proven to be actually used inconsistently with its principal use, the import is nevertheless classified according to its principal use.” Clarendon Mktg., 144 F.3d at 1467.
In Primal Lite, Inc. v. United States, 22 C.I.T. 697, 700 (1998), the CIT described one method to identify principal use provisions as follows: The use of the term “of a kind” is nothing more than a statement of the traditional standard for classifying importation[s] by their use, namely, that it need not necessarily be the actual use of the importation but is the use of the kind of merchandise to which the importation belongs.
Subheadings 9403.30, HTSUS, 9403.40, HTSUS, and 9403.50, HTSUS, each use the term “of a kind.” As such, these subheadings are principal use provisions. Under Additional U.S. Rule of Interpretation 1(a) (AUSR 1(a)), tariff classification under a principal use provision must be determined in accordance with the use in the United States of that class or kind to which the imported goods belong.
Thus, in order to be classified as wooden furniture of a kind used in offices, kitchens or bedrooms, the desk must belong to the same kind or class of goods as such furniture. In United States v. Carborundum Co., 536 F.2d 373, 377 (CCPA 1976) (Carborundum), the U.S. Court of Customs and Patent Appeals stated that in order to determine whether an article is included in a particular class or kind of merchandise, the court must consider a variety of factors, including: (1) the general physical characteristics of the merchandise; (2) the channels, class or kind of trade in which the merchandise moves (where the merchandise is sold); (3) the expectation of the ultimate purchasers; (4) the environment of the sale (i.e., accompanying accessories and marketing); (5) usage, if any, in the same manner as merchandise which defines the class; (6) the economic practicality of so using the import; and (7) the recognition in the trade of this use. Id. While these factors were developed under the Tariff Schedule of the United States (predecessor to the HTSUS), the courts have also applied them under the HTSUS. See, e.g. Aromont USA, Inc. v. United States, 671 F.3d 1310 (Fed. Cir. 2012), Essex Manufacturing, Inc. v. United States, 30 C.I.T. 1 (2006).
Applying the Carborundum factors our first observation is that the executive desk and file cabinet are not marketed, advertised or sold principally for use in the kitchen and with rare exception the ultimate purchasers would not desire to place such furniture into the kitchen; accordingly, the merchandise concerned is {not} classifiable in subheading 9403.40, HTSUS, the subheading for wooden furniture of a kind used in the kitchen.
Our second observation, applying the Carborundum factors, finds that the executive desk and file cabinet are not principally used in the bedroom, in that, this type of furniture can be used not only in the bedroom, but also in one’s home office, library, den, and study, thereby falling to “general use” furniture; accordingly, the merchandise concerned is {not} classifiable in subheading 9403.50, HTSUS, the subheading for wooden furniture of a kind used in the bedroom.
Our third observation, finds that: (1) based upon the physical characteristics of the executive desk and file cabinet that these furniture items are relatively small in relation to commercial office type furniture, (2) within the channels of trade the executive desk and file cabinet are not offered or sold exclusively by office furniture wholesalers or retailers for use in commercial offices, but rather are presented by furniture stores, department stores, online retailers and others for use in home office settings, and (3) the executive desk and file cabinet are not marketed or advertised to purchasers who are designing, furnishing and equipping commercial type office environments; accordingly, the merchandise concerned is {not} classifiable in subheading 9403.30, HTSUS, the subheading for wooden furniture of a kind used in offices.
Consistent with HQ H132495 dated July 11, 2014, the merchandise concerned is classifiable in subheading 9403.60, HTSUS, the residual provision for other wooden furniture.
The applicable subheading for the “Orleans” executive desk and the “Orleans” file cabinet, will be 9403.60.8081, Harmonized Tariff Schedule of the United States (HTSUS), which provides for “Other furniture and parts thereof: Other wooden furniture: Other: Other.” The rate of duty will be 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 World Wide Web at http://www.usitc.gov/tata/hts/.
This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).
A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Neil H. Levy at [email protected].
Sincerely,
Deborah C. Marinucci
Acting Director
National Commodity Specialist Division