CLA-2 OT:RR:CTF:TCM H192520 CkG
TARIFF NO: 9401.79.00
Shaketha Miles
Import Compliance Specialist
Pier 1 Imports
P.O. Box 961020
Fort Worth, TX 76161-0020
RE: Modification of HQ 952032, NY N125879, and NY N050095; classification of plastic imitation wicker chairs with metal frames
Dear Ms. Miles:
This is in reference to your request of September 27, 2011, for the reconsideration of Headquarters Ruling Letter (HQ) 952032, issued to Pier 1 Imports on July 6, 1992. In HQ 952032, CBP classified several items of a plastic imitation wicker and metal furniture in subheading 9401.50.00, HTSUS, as seats of cane, bamboo, or similar materials, by application of GRI 3. You argue that the correct classification of item no. 1025789 is in subheading 9401.79.00, HTSUS, at GRI 1.
We have also considered New York Ruling Letters (NY) N050095, issued on February 11, 2009, to Bed, Bath & Beyond, and NY N125879, issued to Costco Wholesale on October 29, 2010, regarding the use of GRI 3 to classify chairs with metal frames and covered in plastic “wicker”. In accordance with the analysis below, we are modifying HQ 952032 with respect to the classification of item nos. 1025789, 1025791 and 1025813; NY N050095 with respect to the classification of item nos. 16452912 and 1645904; and NY N125879 with respect to the two chairs in the patio set identified as item # 538109.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. §1625(c)(1)), as amended by section 623 of Title VI, notice proposing to modify HQ 952032, NY N125879, and NY N050095 was published on August 2, 2017, in Volume 51, Number 31 of the Customs Bulletin. No comments were received in response to this notice.
FACTS:
HQ 952032 described items 1025789, 1025791 and 1025813 as follows:
The merchandise consists of combination wrought iron and wicker furniture. Style number 1025789 is a wrought iron chair, the seat and back of which are covered with wicker. The wicker covers most of the iron frame except for a small portion at the front of the armrests and the back legs. The iron front legs are covered with a wicker skirt so that only the feet show. Style number 1025791 is a wrought iron framed settee. As in style 1025789, the entire frame, except for the bottom feet, back legs, and armrests are covered with wicker. Both styles are shown with cushioned seats which apparently are not imported. Style 1025813 is a wrought iron framed Bistro armchair. The entire frame is exposed except for a back rest and seat which are made of wicker.
In your submission of September 28, 2011, you further clarify that the “wicker” material covering the seat and back of the iron-framed chairs at issue in HQ 952032 is a plastic material.
NY N050095 described the two seats at issue as follows:
All…items are composed of a steel frame which is completely covered by polyethylene wicker. SKU number 16452912 is a set of chairs and SKU 1645904 is a love seat, both will be sold with a textile cushion seat with back pillows.
In NY N125879, the subject merchandise was described as follows:
Item number 538109 is described as a metal frame resin “wicker” furniture patio set. The set includes (A) two chairs, (B) two ottomans, (C) a sofa and (D) a table. The merchandise is described as follows: (A) The chairs have an aluminum frame with only the arms and legs exposed. The seat and the back rest are wrapped with a plastic resin material designed to look like actual wicker. There is nothing between the aluminum frame and the resin wicker; no wadding, padding or furniture foam of any kind. There are textile seat and back cushions that are to be used with the chair, but the cushions are removable.
ISSUE:
Whether the instant metal framed chairs are classified in subheading 9401.59, HTSUS, as seats of cane, osier, bamboo or similar materials, or in subheading 9401.79, HTSUS, as other seats with a metal frame.
LAW AND ANALYSIS:
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes.
GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in their appropriate order. GRI 3 provides, in pertinent part, 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. GRI 6 provides that classification of goods in the subheading of a heading shall be determined according to the terms of those subheadings and any related subheading notes, and mutatis mutandis, to GRIs 1 through 5.
The HTSUS provisions under consideration are as follows:
9401: Seats (other than those of heading 9402), whether or not convertible into beds, and parts thereof:
Seats of cane, osier, bamboo or similar materials:
9401.52.00: Of bamboo…
9401.53.00: Of rattan…
9401.59.00: Other…
Other seats, with metal frames:
9401.71.00: Upholstered…
9401.79.00: Other…
* * * *
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the HTSUS. 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 Customs and Border Protection (CBP) 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).
EN 94.01 provides, in pertinent part, as follows:
Subject to the exclusions mentioned below, this heading covers all seats (including those for vehicles, provided that they comply with the conditions prescribed in Note 2 to this Chapter), for example:
Lounge chairs, arm chairs, folding chairs, deck chairs, infants’ high chairs and children’s seats designed to be hung on the back of other seats (including vehicle seats), grandfather chairs, benches, couches (including those with electrical heating), settees, sofas, ottomans and the like, stools (such as piano stools, draughtsmen’s stools, typists’ stools, and dual purpose stool steps), seats which incorporate a sound system and are suitable for use with video game consoles and machines, television or satellite receivers, as well as with DVD, music CD, MP3 or video cassette players.
* * * *
There is no dispute that the instant chairs are classifiable in heading 9401, HTSUS, at GRI 1. The issue arises at the subheading level; i.e., whether the instant chairs are “of cane, osier, bamboo or similar materials” for the purposes of subheading 9401.5, HTSUS, or whether they are “other seats, with metal frames”, for the purposes of subheading 9401.7, HTSUS.
In HQ 952032, CBP determined that the chairs were classified in subheading 9401.50.00, HTSUS, as seats “of” similar materials to bamboo, cane, or osier, by application of GRI 3(b). You argue that the correct classification of style no. 1025789 is in subheading 9401.79.00, HTSUS, at GRI 1. We agree, and further find that items 1025789, 1025791 and 1025813, as non-upholstered seats with metal frames, are all eo nomine provided for, at GRIs 1 and 6, in subheading 9401.79, HTSUS. It is therefore not necessary to resort to GRI 3 and an essential character analysis.
First, we note that classification in subheading 9401.5 is incorrect, at GRI 1 or GRI 3, because the instant chairs are not composed, in whole or in part, of a material similar to cane, osier, bamboo or rattan. Bamboo, osier, cane and rattan are all natural plant fibers. The “wicker” material covering the chairs is made of plastic, crafted to resemble a natural plant material. “Wicker” is variously defined as:
a slender, pliant twig; osier; withe.
plaited or woven twigs or osiers as the material of baskets, chairs, etc.; wickerwork.
something made of wickerwork, as a basket.
http://dictionary.cambridge.org/dictionary/english/wicker.
As such, a “wicker” chair or other article describes an article made with the technique of weaving or braiding materials such as bamboo or rattan. Plastic wicker is typically made from PVC or polyethylene. Even if we consider articles made in this style with a synthetic material to constitute an article of wicker, the term “wicker” does not itself appear in the tariff. In order to be classified in subheading 9401.5, an article must be made of either “of” the specified materials, or a similar material. We do not find plastic or resin to be a material similar to wood or other natural plant fibers. CBP has consistently held that such material is classified as a plastic, and not as a wood or other plant fiber. See e.g., NY N269023, dated October 16, 2015; NY N266674, dated August 12, 2015; NY N248506, dated December 12, 2013.
Thus, a chair with a frame of metal and backs or seats of plastic is not classified in subheading 9401.5, HTSUS, at either GRI 1 or GRI 3, because it does not meet the terms of the subheading. At GRI 1, subheading 9401.7 provides for “other” seats—i.e. seats not “of” bamboo or a similar material—with metal frames.
Although the HS does not define either the term “seat” or “frame”, the Explanatory Note to heading 9401 indicates that “seat” and chair” are used interchangeably in the context of this heading. Similarly, the Merriam-Webster Dictionary Online defines “seat” as “a chair, stool, or bench intended to be sat in or on”, and ”chair” as “a seat typically having four legs and a back for one person; any of various devices that hold up or support.” See https://www.merriam-webster.com/dictionary/seat; https://www.merriam-webster.com/dictionary/chair. “Frame” in turn is defined as “the underlying constructional system or structure that gives shape or strength (as to a building).” See https://www.merriam-webster.com/ dictionary/ frame. The frame is therefore the constructional system that gives shape or support to a chair (seat), but which will not in all instances be able to fulfill the purpose of a seat or chair; that is, to support or hold up a mass, esp. a person. Additional materials and components may cover the frame to make it more functional as an actual seat. Therefore, a chair with a metal frame and a seat or back of plastic is provided for, at GRI 1, in subheading 9401.7. The instant articles, as non-upholstered chairs with metal frames covered in plastic, fall within subheading 9401.79, HTSUS.
HQ 952032 cites to HQ 086657, dated July 13, 1990, in support of classification of the items at issue in subheading 9401.50.00, HTSUS. In HQ 086657, CBP classified trunks with wood frames and bottoms covered with a fern or wicker plaiting material in subheading 9403.80, HTSUS, as furniture of other materials, including cane, osier, bamboo or similar materials. This ruling is inapplicable to the instant merchandise because there is no indication that the plaiting material discussed in HQ 952032 was made of plastic. Furthermore, heading 9403, HTSUS, does not contain a subheading for furniture with frames or other components of metal or of any other material; the only subheadings under heading 9403, HTSUS, which reference materials provide for furniture “of” plastics, metal, or other materials, or for wooden furniture. Thus, any furniture of heading 9403 incorporating various such materials is appropriately classified pursuant to GRI 3. When, as is the case with heading 9401, a tariff provision explicitly references an item with components of a specific material, classification at GRI 1 is appropriate for that item.
In NY N050095 and NY N125879, the classification of the metal framed chairs with plastic imitation wicker in subheading 9401.79.00, HTSUS, was ultimately correct; however, as noted above, resort to GRI 3 was unnecessary, as the items are classified in subheading 9401.79.00, HTSUS, at GRI 1.
HOLDING:
By application of GRIs 1 and 6, style numbers 1025789, 1025791 and 1025813 (HQ 952032), item nos. 16452912 and 1645904 (NY N050095), and the two chairs of item # 538109 (NY N125879) are classified in heading 9401, HTSUS, specifically subheading 9401.79.00, HTSUS, which provides for “Seats (other than those of heading 9402), whether or not convertible into beds, and parts thereof: Other seats, with metal frames: Other.” The 2017, column one, general rate of duty is Free.
Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided online at http://www.usitc.gov/tata/hts/.
EFFECT ON OTHER RULINGS:
HQ 952032, dated July 6, 1992, is hereby modified with respect to items 1025789, 1025791 and 1025813.
NY N050095, dated February 11, 2009, is hereby modified with respect to the incorrect use of GRI 3 to classify items 16452912 and 1645904.
NY N125879, dated October 29, 2010, is hereby modified with respect to the incorrect use of GRI 3 to classify the two chairs of item # 538109.
In accordance with 19 U.S.C. §1625(c), this ruling will become effective 60 days
after its publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division