CLA-2 OT:RR:CTF:TCM H079175 CkG
Category: Classification
Tariff No.: 9403.50.90
Port Director
U.S. Customs and Border Protection
3600 East Paisano
El Paso, TX 79905
Re: Application for Further Review of Protest No. 2402-09-100033; Classification of Wood Framed Mirrors
Dear Port Director,
This is in response to correspondence from your office, dated September 17,
2009, forwarding Application for Further Review of Protest No. 2402-09-100033, filed on
behalf of Embassy International, Inc., contesting Customs and Border Protection’s
(CBP) classification and liquidation of one entry of wood framed mirrors under heading
7009 of the Harmonized Tariff Schedule of the United States (HTSUS), which provides
for “Glass mirrors, whether or not framed.”
FACTS:
The subject merchandise consists of wood-framed glass mirrors designed for
attachment to dressers and chests imported in knockdown condition. The mirrors have crossbars and wood screws on the back as they are designed to be attached to the dressers. The dressers on which the mirrors are attached are made of wood and are designed for use in the bedroom. The mirrors and dressers are imported in the same shipment, in equal quantities, but packaged separately for safety reasons. The assembly instructions for the article explain the attachment of the mirror. According to the importer, the mirrors are not sold separately and are displayed assembled with the dressers at retail.
The entry subject to the protest was entered on July 13, 2008, in heading 9403, HTSUS, as furniture. It was liquidated on May 29, 2009, in heading 7009, HTSUS, as a mirror. The protest was filed on August 12, 2009.
ISSUE:
Whether the subject mirrors are classified as mirrors of heading 7009, HTSUS, or as furniture of heading 9403, HTSUS.
LAW AND ANALYSIS:
Initially, we note that 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. 0901-2009-100204 was properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(a) because the decision against which the protest was filed is alleged to be inconsistent with a prior CBP ruling with respect to the same or substantially similar merchandise.
Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). 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.
GRI 2(a) provides that any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as entered, the incomplete or unfinished article has the essential character of the complete or finished article. It shall also include a reference to that article complete or finished (or falling to be classified as complete or finished by virtue of this rule), entered unassembled or disassembled.
The HTSUS provisions under consideration are as follows:
Glass mirrors, whether or not framed, including rear view mirrors:
Framed:
Over 929 cm in reflecting area….
* * * * *
Other furniture and parts thereof:
Wooden furniture of a kind used in the bedroom:
Other:
9403.50.90 Other….
Additional U.S. Rule of Interpretation 1(c) provides as follows:
A provision for parts of an article covers products solely or principally used as a part of such articles but a provision for "parts" or "parts and accessories" shall not prevail over a specific provision for such part or accessory
* * * * *
The Harmonized Commodity Description and Coding System Explanatory Notes
(“ENs”) constitute the official interpretation of the HTSUS. While not legally binding or
dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS
and are generally indicative of the proper interpretation of these headings at the
international level. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
General EN (4)(B)(i) to Chapter 94, HTSUS, reads as follows:
For the purposes of this Chapter, the term “ furniture ” means :
(B) The following :
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.
Articles of furniture presented disassembled or unassembled are to be treated as assembled articles of furniture, provided the parts are presented together. This applies whether or not the furniture incorporates sheets, fittings or other parts of glass, marble or other materials (e.g., a wooden table with a glass top, a wooden wardrobe with a mirror, a sideboard with a marble top).
PARTS
In addition to the exclusions referred to in the individual Explanatory Notes below, this Chapter also excludes :
(c) Sheets of glass (including mirrors), marble or other stone or of any other
material referred to in Chapter 68 or 69, whether or not cut to shape, unless they are combined with other parts which clearly identify them as parts of furniture (e.g., a mirror door for a wardrobe).
* * * * *
The Protestant requests classification of the subject mirrors in heading 9403,
HTSUS, as other bedroom furniture, by application of GRI 2(a).
At GRI 1, the subject mirrors are eo nomine provided for in heading 7009, HTSUS, which provides for glass mirrors, whether or not framed. See AUSRI 1(c).
However, GRI 2(a) provides that goods imported in an unassembled condition are to be classified as the assembled article. GRI 2(a) does not apply when unassembled components of a good are imported separately. When component parts are imported as separate items, the goods are classified separately, whereas if component goods are imported together, even in separate boxes, the items are aggregated to determine appropriate classification. See e.g., HQ 966894, dated March 29, 2004; HQ 958915, dated February 27, 1996; NY N068127, dated August 3, 2009; NY 896481, dated April 28, 1994.
The sales invoice and packing list for the instant entry indicate that the mirrors are packaged separately for safety reasons, but are imported in a one to one correspondence and in the same shipment as the dressers. The importer states that the mirrors are not sold separately. Therefore, the classification will be based on GRI 2(a). See HQ 958915, dated February 27, 1996; NY R02009, dated June 15, 2005. CBP has also held that dressers fully assembled or imported with mirrors are classifiable as furniture of heading 9403, HTSUS. See e.g., NY N012869, dated June 20, 2007; NY N011531, dated June 8, 2007; NY G88576, dated March 29, 2001. Therefore, if the mirrors and dresser, taken together, have the essential character of the finished article, the mirrors are classifiable as separately presented elements of unit furniture of heading 9403, HTSUS, under GRI 2(a), when the mirrors are imported together with the dressers. The instant mirrors are thus classifiable in heading 9403, HTSUS.
HOLDING:
The subject mirrors, imported together with the corresponding dresser, are classified with the dressers in heading 9403, HTSUS, specifically subheading 9403.50.90, HTSUS, which provides for “Other furniture and parts thereof: Wooden furniture of a kind used in the bedroom: Other: Other.” The 2009 column one, general rate of duty is Free.
You are instructed to allow 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, Regulations and Rulings of the Office of International Trade 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