CLA-2 OT:RR:CTF:TCM H195875 TNA
Port Director, Chicago Service Port
U.S. Customs and Border Protection
5600 Pearl Street Rosemont, IL 60018
Attn: John Mosquera, Import Specialist
Re: Application for Further Review of Protest No. 3901-11-100876; Classification of gear wall panels, gear wall base trim and geartracks for a wall panel home organization and storage system
Dear Port Director:
The following is our decision regarding the Application for Further Review (“AFR”) of Protest No. 3901-11-100876, timely filed on August 18, 2011, on behalf of Maytag Sales, Inc. (“Maytag” or “Protestant”). The AFR concerns the classification of gear wall panels, gear wall base trim and geartracks under the Harmonized Tariff Schedule of the United States (“HTSUS”).
FACTS:
The subject merchandise consists of four items of Maytag’s “Gladiator” Wall Panel Home Organization and Storage System. The first type of organization device at issue, named GearTrack Channel, is made from a blend of polyvinyl chloride (“PVC”) and chlorinated polyvinyl chloride (“CPVC”) extruded plastic. Three different SKUs of the GearTrack Channel are at issue in this protest: GAWC041PRY, GAWC042PPY, and GAWC046PSY. While the SKUs are the same item, they provide for different packaging configurations. These items are plastic strips that are attached to a garage wall to allow for items, such as hooks, baskets, shelves, cabinets and bins to be hung from them. They can be installed on a variety of surfaces and act as organizational tools.
The second item at issue is the GearWall Panel, which is also made from a blend of PVC and CPVC. Two different SKUs of the GearWall are at issue in this protest: GAWO042PWY, which is a four-foot shelf; and GAWC092PMY, which is an eight-foot shelf. They are both “slat-wall” style panel systems that are attached to a garage wall to allow for items, such as hooks, baskets, shelves, cabinets and bins to be hung from them. They can be installed on a variety of surfaces and act as organizational tools.
The third item at issue is the Gearwall Base Trim, one SKU of which is at issue. It is made of PVC extruded plastic. It is meant to be installed between GearWall Panels and the garage floor or as a decorative trim around doors, windows, and more.
The fourth item at issue in this protest is the Gearwall Trim, one SKU of which is at issue. It is made of PVC extruded plastic. Like the Base Trim, the GearWall Trim is more decorative than utilitarian. It is intended to be used to finish the edges of the GearWall Panels or as trim where GearWall Panels have been routed around electrical outlets, light switches and other obstructions on the walls on which they are installed.
The subject merchandise entered on April 11, 2010 under subheading 3916.20.00, HTSUS, which provides for “Monofilament of which any cross-sectional dimension exceeds 1 mm, rods, sticks and profile shapes, whether or not surface-worked but not otherwise worked, of plastics.” The port, citing NY K89351, issued to the Protestant on October 5, 2004, liquidated the merchandise as entered on February 25, 2011. The importer filed this protest and AFR on August 19, 2011, claiming classification in subheading 9403.90.50, HTSUS, as “Other furniture and parts thereof: Parts: Other: Of rubber or plastics: Other.”
ISSUE:
Whether gear wall panels, gear wall base trim and geartracks for a wall panel home organization and storage system are classified in heading 3916, HTSUS, as “Monofilament of which any cross-sectional dimension exceeds 1 mm, rods, sticks and profile shapes, whether or not surface-worked but not otherwise worked, of plastics,” or in heading 9403, HTSUS, as “Other furniture and parts thereof”?
LAW AND ANALYSIS:
Initially, we note that this matter 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 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. 3901-11-100876 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(a) and (c) because the protested decision is alleged to be inconsistent with other liquidation decisions on substantially similar merchandise; it is also alleged that the subject protest involves matters previously ruled upon by the Customs courts, but addresses products not directly considered by the court. Specifically, the Protestant argues that classification in heading 3916, HTSUS, conflicts with Storewall, LLC v. United States, 644 F.3d 1358 (Fed. Cir. 2011) (“Storewall”), and that addressed similar issues of fact and law, it did not address the specific products at issue in this protest.
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.
The HTSUS headings under consideration are the following:
3916 Monofilament of which any cross-sectional dimension exceeds 1 mm, rods, sticks and profile shapes, whether or not surface-worked but not otherwise worked, of plastics:
9403 Other furniture and parts thereof:
Legal Note 2 to Chapter 39, HTSUS, states, in pertinent part, the following:
This chapter does not cover:
…
(x) Articles of chapter 94 (for example, furniture, lamps and lighting fittings, illuminated signs, prefabricated buildings);
Additional U.S. Rule of Interpretation 1 states, in pertinent part, the following:
In the absence of special language or context which otherwise requires—
…
(c) 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;
In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System, which constitute the official interpretation of the HTSUS at the international level, may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The EN to heading 3916, HTSUS, states, in pertinent part, the following:
This heading covers monofilament of which any cross sectional dimension exceeds 1 mm, rods, sticks, and profile shapes. These are obtained in the length in a single operation (generally extrusion), and they have a constant or repetitive cross section, from one end to the other. Hollow profile shapes have a cross section different from that of tubes, pipes and hoses of heading 39.17 (see Note 8 to this Chapter).
The heading also includes such products which have been merely cut to a length exceeding the maximum cross sectional dimension or surface worked (polished, matt finished, etc.), but not otherwise worked. Profile shapes with an adhesive surface, used for sealing window frames, are classified in this heading.
Products which have been cut down to the point where the length does not exceed the maximum cross sectional dimension, or which have been otherwise worked (drilled, milled, assembled by glueing or sewing, etc.) are excluded from this heading. They are classified as articles in headings 39.18 to 39.26 unless they are more specifically covered by some other heading in the Nomenclature.
The EN to heading 9403, HTSUS, states, in pertinent part, the following:
This heading covers furniture and parts thereof, not covered by the previous headings. It includes furniture for general use (e.g., cupboards, show cases, tables, telephone stands, writing desks, escritoires, book cases, and other shelved furniture, etc.), and also furniture for special uses.
The heading includes furnitures for:
(1) Private dwellings, hotels, etc., such as : cabinets, linen chests, bread chests, log chests; chests of drawers, tallboys; pedestals, plant stands; dressing tables; pedestal tables; wardrobes, linen presses; hall stands, umbrella stands; side boards, dressers, cupboards; food safes; bedside tables; beds (including wardrobe beds, camp beds, folding beds, cots, etc.); needlework tables; foot stools, fire screens; draught screens; pedestal ashtrays; music cabinets, music stands or desks; play pens; serving trolleys (whether or not fitted with a hot plate).
Protestant argues that its merchandise is substantially similar to the merchandise at issue in Storewall, 644 F.3d 1358, where the court considered the classification of Storewall’s wall panels and locator tabs. After considering classification in heading 3926, HTSUS, the court classified the merchandise in heading 9403, HTSUS, as parts of furniture. Protestant argues that the subject merchandise should be classified in accordance with the Storewall decision.
In response, we note in Storewall, the court was deciding between classification in heading 3926, HTSUS, as “Other articles of plastic,” and heading 9403, HTSUS, as “Other furniture and parts thereof.” Storewall, 644 F.3d 1358, 1360-1361. After consulting the ENs and dictionaries to define the term “furniture” the court found that Storewall’s complete system fit the definition of “unit furniture.” Id. at 1361. The court also found that the imported wall panels and locator tabs were dedicated solely for use with the complete Storewall system, and as a result, concluded that they were parts of unit furniture of heading 9403, HTSUS. Id. at 1364.
In contrast to the merchandise before the courts in Storewall, the products at issue here have not been “otherwise worked” to the extent that they would not be prima facie classifiable under heading 3916, HTSUS. This is consistent with respect to the product sample provided for NY K89351, dated October 5, 2004, which had a uniform cross-section throughout its entire length, and did not contain pre-drilled holes or any other kind of processing that would be considered “otherwise worked” beyond the extrusion process.
Protestant argues that because the Storewall court found that its merchandise was described as parts of furniture of heading 9403, HTSUS, it has been clearly established that the subject merchandise should be classified there as well. Even assuming, arguendo, that the subject merchandise is described by the terms of heading 9403, HTSUS, as per the court’s analysis in Storewall, that does not end the inquiry.
Protestant, citing Note 2(x) to Chapter 39, HTSUS, states that if the subject merchandise is described by the terms of heading 9403, HTSUS, then heading 9403, HTSUS, prevails. We acknowledge that Note 2(x) directs classification of articles of furniture out of Chapter 39, HTSUS, and into heading 9403, HTSUS, and that articles of furniture was the focus of the CIT’s analysis in Storewall. On appeal, the Federal Circuit acknowledged the government’s citation to Note 2 to Chapter 39, HTSUS. However, the Federal Circuit based its reversal of the CIT on its disagreement with the CIT’s definition of “unit furniture,” and on its disagreement with the CIT’s determination that the subject merchandise was “merely a rack” that did not meet this definition. Thus, the Federal Circuit’s decision was not based on Note 2(x) to Chapter 39, HTSUS.
This is particularly apparent because Note 2(x) does not exclude parts of furniture from Chapter 39, HTSUS. In HQ 561353, dated September 19, 2002, for example, we analyzed the classification of an electrode wire and stated:
Note 1(f) to Section XV excludes from classification in Section XV “Articles of section XVI (machinery, mechanical appliances and electrical goods).” … We believe that the exclusion in Note 1(f) to Section XV does not apply because the electrode wire is not “machinery, mechanical appliances or electrical goods.” Note 1(f) does not exclude goods which could be considered as “parts” of such machinery, mechanical appliances or electrical goods. In this respect, we point out that the HTSUS has been clear as to the exclusion of “parts” elsewhere in the HTSUS. For example, in the exclusionary Note 3(k) to Chapter 71, the exclusion specifically identifies “machinery, mechanical appliances or electrical goods, or parts thereof, of Section XVI.” Therefore, the legal text of Note 1(f) to Section XV, which is narrower in scope, was not intended to exclude certain products which, although they could be considered as “parts” by virtue of their use, are clearly defined in the provisions of Section XV.
See HQ 561353.
The same reasoning applies to the present case. The legal text of Note 2(x) to Chapter 39, HTSUS, which is narrower in scope than Note 3(k) to Chapter 71, HTSUS, does not apply to parts either. Thus, Note 2(x) does not exclude parts of furniture from Chapter 39, HTSUS. Additional U.S. Rule 1(c) provides that a parts provision shall not prevail over a specific provision for the same merchandise. In this case, heading 3916, HTSUS, specifically provides for the merchandise, while the relevant portion of heading 9403, HTSUS, is a parts provision. As a result, heading 3916, HTSUS, prevails over heading 9403, HTSUS.
This classification is in accordance with prior CBP rulings. NY K89351, dated October 5, 2004, for example, was issued to Whirlpool Corporation, Maytag’s parent company, following the ruling request discussed above. In NY K89351, we classified slot-wall panels named Gladiator GearWall panels in subheading 3916.20.0091, HTSUS. Those panels, which were designed to be mounted onto the interior walls of garages or basements, are the same panels at issue here. As a result, the subject merchandise is classified in heading 3916, HTSUS.
HOLDING:
By application of GRI 1, the subject merchandise is classified in heading 3916, HTSUS. It is specifically provided for in subheading 3916.20.00, HTSUS, which provides for “Monofilament of which any cross-sectional dimension exceeds 1 mm, rods, sticks and profile shapes, whether or not surface-worked but not otherwise worked, of plastics: Of polymers of vinyl chloride.” The column one, general rate of duty is 5.3% ad valorem.
You are instructed to DENY the protest.
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 CBP Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office International Trade, 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