CLA-2-94:OT:RR:NC:N4:433
Desiree L. Pasbrig
Director Global Sourcing
National Business Furniture
770 S. 70th Street
Milwaukee, WI 53214
RE: The tariff classification of counter top kits from China.
Dear Ms. Pasbrig:
In your letter dated January 26, 2017, you requested a tariff classification ruling. Illustrative literature and description were provided.
The merchandise concerned involves the “nbf® Signature Series” kits used in constructing modular office furniture. Kit A in the assembly instructions has a 48-inch long piece of glass identified as the glass counter top and a 48-inch piece of laminate identified as the counter top, of which the glass counter top is attached approximately ½-inch above the laminate counter top. Kit B in the assembly instructions has a curved piece of glass identified as the curved glass counter top and a laminate curve counter top, of which the curve glass counter top is attached approximately ½-inch above the curve laminate counter top. Kit C in the assembly instructions has is a 63-inch long piece of glass identified as the glass counter top and a 63-inch laminate identified as the counter top, of which the glass counter top is attached approximately ½-inch above the laminate counter top. All of the glass counter tops are made from tempered glass and are pre-fitted with metal inserts which appear to be cap nuts.
Illustrative literature of the modular office furniture indicates a self-standing “Reception Desk” and an “Esquire Curved Reception Desk.” The Esquire Curved Reception Desk is able to configure in two options, reverse of each other, with a curved desk in the center, a rectangular desk on the side and a square return desk on the other side. The contents of kits A, B and C are directly placed on counter supports above their corresponding desktops and when placed are recessed, only partially covering the surface area of their corresponding desktops. Illustrative literature further indicates that the three glass counter tops and three laminate counter tops attach by means of glass spacers and screws (bolts), which are held together by means of cap nuts.
You indicate in your binding ruling request that your company purchases furniture in various quantities of “base units” and “glass/laminate counter top units,” and allow your customers to purchase the modules they require. For purposes of this ruling, “base units” as described in the illustrative literature for the “Reception Desk” is the free standing desk and for the “Esquire Curved Reception Desk” are the curved desk, rectangular desk and square return desk. It is your contention that because you import “base units and counter top units” in varying quantities for each entry that you choose to classify each unit separately, rather than as a complete but unassembled finished good.
Classification under the Harmonized Tariff Schedule of the United States (HTSUS) is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods 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.
If a finding of GRI 1 can be made for Kits A, B and C, your contention of separately classifying them and the “base units” will not be addressed, under the principle of unassembled goods having the essential character of the finished good, and therefore when aggregated together are classified as the finished goods – see GRI 2 (a) of the HTSUS. When employing the GRIs to the HTSUS in regard to classifying merchandise, the GRIs are applied hierarchical, and not of free will of one’s choosing.
A reading of the Legal Note 2, and 2 (a) and 2 (b) to Chapter 94 of the HTSUS, provides: at 2, that the articles (other than parts) referred to in the headings of 9401 to 9403 are to be classified in those headings only if they are designed for placing on the floor or ground; at 2 (a) and 2 (b), the following are, however, to be classified in the above headings even if they are designed to be hung, to be fixed to the wall or to stand one on the other --- 2 (a) Cupboards, bookcases, other shelved furniture (including single shelves presented with supports for fixing them to the wall) and unit furniture, and 2 (b) Seats and beds.
When interpreting and implementing the Harmonized Tariff Schedule of the United States (HTSUS), the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, while neither legally binding nor dispositive, provide a guiding commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. CBP believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The General Explanatory Notes (ENs) to Chapter 94 of the HTSUS state with regard to the meaning of furniture, at:
(A): 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, caravan-trailers or similar means of transport. (It should be noted that, for 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). Similar articles (seats, chairs, etc.) for use in gardens, squares, promenades, etc., are included in this category.
(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; and (ii) Seats or beds designed to be hung or to be fixed to the wall.
The term “unit furniture” is not defined in the text of Chapter 94 or its heading 9403 of the HTSUS, nor the ENs to the HTSUS. When terms are not defined, 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).
In Storewall, LLC versus the United States, Slip Op. 09-146, Court No.05-00462 dated December 18, 2009, the United States Court of International Trade (CIT), using relevant sources derived the following meaning for the term unit furniture: An item (a) fitted with other pieces to form a larger system or which is itself composed of smaller complementary items, (b) designed to be hung, or fixed to the wall, or stand one on the other or side by side, (c) assembled together in various ways to suit the consumer’s individual needs to hold various objects or articles, and (d) excludes other wall fixtures such as coat, hat and similar racks, key racks, clothes brush hangers, and newspaper racks. Further, The United States Court of Appeals for the Federal Circuit (CAFC), in Storewall, LLC versus the United State, 2010-1193, not only upheld the meaning of unit furniture as defined by the CIT, but also added that unit furniture may be assembled together in various ways to suit the consumer’s individual needs to hold various objects and articles, and it was this versatility and adaptability that was the essence of unit furniture.
It is our position that Kits A, B and C fall within the meaning of “unit furniture” as defined by the CIT and the CAFC in Storewall, LLC. In context with Legal Note 2 (a) to Chapter 94 and General EN (B) (i) to Chapter 94 [emphasized placed], HTSUS, this office finds that the three kits of the merchandise concerned are classifiable in heading 9403, HTSUS, as separately presented elements of unit furniture, and not parts of furniture, in accordance with GRI 1, HTSUS. Consequently, this office finds no need to address the GRI 2 (a) argument as put forth by your company for the “base units and counter top units.”
GRI 1 in conjunction with GRI 6 is implicated at the [sub]heading level because the contents of the kits are composed of different components (i.e., glass, and wood covered in a plastic laminate) and are considered composite goods. The ENs to the HTSUS, at GRI, Rule 3 (b) (VIII), state that “The factor which determines essential character will vary between different kinds of goods. It may for example, be determined by the nature of the materials or components, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.” When the essential character of a composite good can be determined, the whole product is classified as if it consisted only of the material or component that imparts the essential character to the composite good.
Although no essential character factors were presented, we are able to formulate an essential character determination for each of the kits by observance of the illustrative literature and a reading of the description provided. We note that the laminate counter tops are composed of particle board (engineered wood) covered in a plastic laminate with PVC edge banding, yet the glass counter tops are specially formed by tempered glass and cover all but the edges of the laminated counter tops, thereby virtually obscuring the laminated counter tops from sight. In the opinion of this office, the essential character of Kits A, B and C is imparted by the glass counter tops.
The applicable subheading for of Kits A, B and C will be 9403.89.6020, Harmonized Tariff Schedule of the United States (HTSUS), which provides for “Other furniture and parts thereof: Furniture of other materials, including cane, osier, bamboo or similar materials: Other: 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 https://hts.usitc.gov/current.
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,
Steven A. Mack
Director
National Commodity Specialist Division