OT:RR:CTF:CPM H252515 APP
Consumer Products and Mass Merchandising
Center of Excellence and Expertise
U.S. Customs and Border Protection
1699 Phoenix Parkway, Suite 400
College Park, Georgia 30349
Attn.: Michael Phillips, Import Specialist
RE: Protest and Application for Further Review No. 3001-14-100058; Tariff classification of a willow trunk without a liner and a willow hamper with a cotton liner
Dear Mr. Phillips:
The following is our decision regarding the Application for Further Review (“AFR”) of Protest Number 3001-14-100058, timely filed on January 21, 2014, on behalf of Target General Merchandise, Inc. (“protestant”). The AFR concerns U.S. Customs and Border Protection’s (“CBP”) tariff classification under the Harmonized Tariff Schedule of the United States (“HTSUS”) of the ThresholdTM Rectangle Trunk (DPCI 002-07-0888) (“trunk”) and the ThresholdTM Rectangle Laundry Hamper (DPCI 002-07-0897) (“hamper”).
FACTS:
Protestant describes the subject willow trunk and hamper as follows:
Both items are made from 100% lacquered willow wickerwork. The trunk measures 18.0” (H) x 16.0” (W) x 30.0” (L). It features a removable lid and handles. The hamper measures 24.75” (H) [x] 14.0” (W) x 20.0” (D). It features a hinged lid, built in handles, and a cotton liner. Both items are marketed for home storage and organization uses.
The two items were advertised on Target’s website as bins and containers.
The Protest and AFR cover 7 entries of the subject merchandise made from September 10, 2012 through December 16, 2012, under subheading 4602.19.12, HTSUS, which provides for “Basketwork, wickerwork and other articles, made directly to shape from plaiting materials or made up from articles of heading 4601; articles of loofah: Of vegetable materials: Other: Other baskets and bags, whether or not lined: Of willow.” The entries were liquidated from July 26, 2013 through November 1, 2013, under the same subheading. This Protest and AFR were filed on January 21, 2014, claiming classification as furniture in heading 9403, HTSUS.
ISSUE:
Whether the willow trunk and hamper are classifiable as basketwork and wickerwork under heading 4602, HTSUS, or as furniture under heading 9403, HTSUS.
LAW AND ANALYSIS:
CBP first notes that the matter is protestable under 19 U.S.C. § 1514(a)(2), as a matter on classification. The AFR was timely filed within 180 days of liquidation of the entries. See 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 Number 3001-14-100058 is properly accorded to protestant pursuant to 19 C.F.R. § 174.24(b) because the decision against which the protest was filed is alleged to be inconsistent with a ruling of the Commissioner of CBP or his designee, or with a decision made by CBP with respect to the same or substantially similar merchandise.
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 (“AUSR”). The GRIs and the AUSR are part of the HTSUS, and are 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 order. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the heading and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.
GRI 2(b) provides that the classification of goods consisting of more than one material or substance shall be according to the principles of GRI 3. GRI 3(a) states that goods should be classified according to the heading which affords the most specific description, unless the multiple headings under consideration refer to only part of the materials or substances contained in goods that are mixed or composite, or to only part of the items in a set put up for retail sale. GRI 3(b) provides that “composite goods consisting of different materials or made up of different components” are to be classified “as if they consisted of the material or component which gives them their essential character,” and where this is not possible, “under the heading which occurs last in numerical order among those which equally merit consideration.” Pursuant to GRI 6, classification at the subheading level uses the same rules, mutatis mutandis, as classification at the heading level.
The HTSUS headings under consideration are as follows:
4602 Basketwork, wickerwork and other articles, made directly to shape from plaiting materials or made up from articles of heading 4601; articles of loofah:
9403 Other furniture and parts thereof:
Note 1 to Chapter 46, HTSUS, states:
In this chapter the expression “plaiting materials” means materials in a state or form suitable for plaiting, interlacing or similar processes; it includes straw, osier or willow, bamboos, rattans, rushes, reeds, strips of wood, strips of other vegetable material (for example, strips of bark, narrow leaves and raffia or other strips obtained from broad leaves), unspun natural textile fibers, monofilament and strip and the like of plastics and strips of paper, but not strips of leather or composition leather or of felt or nonwovens, human hair, horsehair, textile rovings or yarns, or monofilament and strip and the like of chapter 54.
Note 2(e) to Chapter 46, HTSUS, states, that Chapter 46 “does not cover” “[a]rticles of chapter 94 (for example, furniture, lamps and lighting fittings).”
Note 2 to Chapter 94, HTSUS, states that:
The articles (other than parts) referred to in headings 9401 to 9403 are to be classified in those headings only if they are designed for placing on the floor or ground.
The following are, however, to be classified in the above-mentioned headings even if they are designed to be hung, to be fixed to the wall or to stand one on the other:
(a) Cupboards, bookcases, other shelved furniture (including single shelves presented with supports for fixing them to the wall) and unit furniture;
(b) Seats and beds.
In interpreting the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) may be utilized. The ENs, though not dispositive or legally binding, provide commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed.
Reg. 35127, 35128 (August 23, 1989).
The ENs to GRI 3(b), state, in relevant part, that:
(VIII) The factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.
(IX) For the purposes of this Rule, composite goods made up of different components shall be taken to mean not only those in which the components are attached to each other to form a practically inseparable whole but also those with separable components, provided these components are adapted one to the other and are mutually complementary and that together they form a whole which would not normally be offered for sale in separate parts.
The General Notes to EN 46, HTS state, in relevant part, that:
In addition to articles of loofah, this Chapter covers semi manufactured products (heading 46.01) and certain articles (headings 46.01 and 46.02) made by interlacing, weaving or by similar methods of assembling unspun materials, particularly:
(1) Straw, osier or willow, bamboos, rushes, rattans, reeds, chipwood (i.e., wood in thin strips), drawn wood, strips of other vegetable material (for example, strips of bark, narrow leaves and raffia or other strips obtained from broad leaves such as those of banana plants or palm trees), provided they are in a state or form suitable for plaiting, interlacing or similar processes….
Certain of these materials, particularly the vegetable products, may be prepared (e.g., by splitting, drawing, peeling, etc., or by impregnating with wax, glycerol, etc.) to render them more suitable for plaiting, interlacing or similar processes.
EN 46.02 states, in relevant part:
Subject to the exclusions specified in the General Explanatory Note to this Chapter, the heading covers:
(i) articles made directly to shape from plaiting materials; …
Such articles include:
(1) Baskets, panniers, hampers and basketware containers of all kinds, whether or not fitted with rollers or castors, including fish baskets, creels and fruit baskets.
(2) Similar baskets or boxes of interlaced chipwood. But chipbaskets of non interlaced chipwood are excluded (heading 44.15).
* * *
(6) Trays, bottleholders, carpet beaters, tableware, kitchenware and other household articles ….
The General Notes to EN 94 state that for the purposes of Chapter 94, the term “furniture” means:
(A) 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 the 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 also included in this category.
* * *
Except for the goods referred to in subparagraph (B) above, the term “furniture” does not apply to articles used as furniture but designed for placing on other furniture or shelves or for hanging on walls or from the ceiling.
* * *
Similarly, the Chapter excludes the following types of goods not designed for placing on the floor: small articles of cabinet work and small furnishing goods of wood (heading 44.20), and office equipment (e.g., sorting boxes, paper trays) of plastics or of base metal (heading 39.26 or 83.04).
* * *
Headings 94.01 to 94.03 cover articles of furniture of any material (wood, osier, bamboo, cane, plastics, base metals, glass, leather, stone, ceramics, etc.)….
EN 94.03 states, in relevant part, that:
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 (including single shelves presented with supports for fixing them to the wall), 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; stools and foot-stools (whether or not rocking) designed to rest the feet, fire screens; draught screens; pedestal ashtrays; music cabinets, music stands or desks; play pens; serving trolleys (whether or not fitted with a hot plate)….
The heading does not include:
(a) Travelling chests, trunks and the like, not having the character of furniture (heading 42.02)….
(d) Waste paper baskets (of plastics, heading 39.26; of basket or wickerwork, heading 46.02; of base metal, headings 73.26, 74.19, etc.)….
Protestant asserts that within the terms of heading 9403, HTSUS and Note 2(e) to Chapter 46, HTSUS, articles of plaiting material such as the two items at issue that have the character of furniture are not classified in Chapter 46 but more specifically in Chapter 94. Protestant claims that combining the Chapter notes and ENs, articles of plaiting material that are (1) movable, (2) constructed for placing on the floor or ground, and (3) used with a utilitarian purpose to equip a private dwelling are classified as articles of furniture in Chapter 94, HTSUS. Protestant states that this is supported by a number of CBP rulings.
All articles designed for placing on the floor or ground are not automatically classified as furniture of Chapter 94, HTSUS. Chapter 94 covers “movable” articles with the character of furniture that are not included under other more specific headings of the HTSUS. See General Notes to EN 94. Heading 9403, HTSUS does not include travelling chests and trunks that do not have the character of furniture and waste-paper baskets of wickerwork of heading 4602, HTSUS. See EN 94.03. Decisions by the courts interpreting nomenclature under the HTSUS’ predecessors, the 1971 Tariff Schedules of the United States (“TSUS”) and the Tariff Acts of 1909, 1913 and 1930, are not deemed dispositive under the HTSUS. However, on a case-by-case basis, such decisions should be deemed instructive in interpreting the HTSUS, particularly where the nomenclature previously interpreted in those decisions remains unchanged and no dissimilar interpretation is required by the text of the HTSUS. See Omnibus Trade and Competitiveness Act of 1988, Public Law 100-418, August 23, 1988, 102 Stat. 1107, 1147; H.R. Rep. No. 576, 100th Cong., 2d Sess. 549-550 (1988); 1988 U.S.C.C.A.N. 1547, 1582-83.
In Krauss & Co. v. United States, 2 Ct. Cust. 17, T.D. 31574 (1911), the U.S. Court of Customs Appeals (predecessor to the U.S. Court of Appeals for the Federal Circuit) held that a willow laundry basket was a basket and not furniture because the term “basket” appeared eo nomine. In the HTSUS, the term “basketware” also appears eo nomine (in heading 4602, HTSUS) and is not in the chapter for furniture (Chapter 94, HTSUS). In Royal Cathay Trading Co. v. United States, 56 Cust. Ct. 371, 382, C.D. 2662 (1966), the U.S. Customs Court, First Division held that baskets composed of rattancore served as a container or a vessel because they were used to hold other articles and that “the intention of the Congress is that any article which is, in fact, a basket is not furniture.” The court reiterated that “for an article to be classed as a basket it must be used as a basket is used, i.e., as a vessel or container to hold, protect, or carry commodities (or babies).” Id. at 383. This court case is instructive because the issue was whether baskets should be classified as basketware or furniture, and the usage of baskets, as described by the court, has not changed.
The instant hamper and trunk were referred to as bins and containers on Target’s website, see supra, and not as furniture. They function as easily movable baskets for storing and transporting items such as laundry, toys, or food. They are not designed to be placed exclusively on the ground or the floor as the rattan hope chests in NY B85690, dated May 30, 1997. Unlike the trunks and hampers in the CBP rulings cited by protestant, the instant trunk and hamper are easy to transport and are not advertised as furniture used for long-term storage or as a coffee table, end table, lamp or plant stand, or foot of a bed unit. See also EN 94.03(1); HQ 088432, dated August 15, 1991 (classifying genuine cedar lined storage trunks with decorative exterior and foam pads at the bottom used to protect clothes, linens, and woolens from undesirable effects of inserts, moisture and dust that were marketed and sold as furniture under heading 9403, HTSUS).
The trunks in HQ 086657, dated July 13, 1990, were different from the instant trunk and hamper because they were merely decorative and were designed for placing on the floor to serve as storage containers. The trunks in HQ 086657 could not function as easily movable baskets for storing and transporting various items such as laundry, toys and food for which simple baskets, hampers, or the like are normally used. The instant willow hamper and trunk are distinguishable from the hampers in the CBP rulings cited by protestant because they are made directly to shape from plaiting materials and are neither laundry bags attached to a metal frame nor unit furniture within the meaning of Chapter 94, HTSUS. See Storewall, LLC v. United States, 644 F.3d 1358, 1361 (Fed. Cir. 2011) (stating that unit furniture consists of smaller complementary items designed to be assembled together in various ways according to the consumer’s individual needs to hold various objects or articles). Therefore, the instant willow hamper and trunk are not furniture within the meaning of Chapter 94, HTSUS, and as a result are not excluded from heading 4602, HTSUS pursuant to Note 2(e) to Chapter 46.
The willow trunk is prima facie classifiable in heading 4602, HTSUS via GRI 1 because it is basketwork or wickerwork made from plaiting materials. Heading 4602, HTSUS covers articles made by interlacing or weaving willow. See General Notes to EN 46; EN 46.02. Such articles include items made directly to shape from plaiting materials such as hampers and basketware containers of all kind. See EN 46.02. In NY N027980, dated June 4, 2008, CBP classified rectangular cornhusk storage trunks with hinged lids used for storing household items such as clothes and linens in the bedroom that were not specifically designed to stand on the floor in heading 4602, HTSUS. Thus, since the instant trunk is basketwork or wickerwork of heading 4602, HTSUS, by application of GRI 1, there is no need to proceed to the remaining GRIs.
The willow hamper with a cotton liner is classified in heading 4602, HTSUS, by application of GRI 3(b). Because the materials from which the hamper is constructed (i.e., willow and cotton textile) are prima facie classifiable in different headings, the item is a composite good within the meaning of GRI 3(b). EN IX for GRI 3(b) defines “composite goods” as made up of separable components that “are adapted one to the other and are mutually complementary” and together “form a whole which would not normally be offered for sale in separate parts.” Based on EN VIII for
GRI 3(b), essential character may be determined by “the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.” In Morimura Bros. v. United States, 8 Ct. Cust. 211, T.D. 37238 (1917), the U.S. Court of Customs Appeals held that baskets made of a woven basketwork frame of stained bamboo or like material with a metal liner within the woven frame were baskets and the metal liner did not require a different classification. They remained baskets because their essential character and use did not change. The court stated that, “It is well known that other materials, such as muslin, silk, or paper, are sometimes used as linings for wicker baskets, thereby adding to their beauty and usefulness; but such linings do not necessarily change the essential character of the article, for it may remain a basket just the same.” Id. at 214 (citations omitted). This decision is relevant because the court applied an essential character analysis to determine the classification of basketware of stained bamboo or like material with a lining made of different material.
Similarly, in the instant matter, the willow hamper is sold with the cotton liner and the component that provides the hamper with its essential character is the willow because it gives the hamper its structure and allows it to function as a laundry basket. The liner is added for convenience and the hamper may function without it. See NY N182158, dated September 21, 2011 (finding that a willow basket with cotton liner was classifiable in heading 4602, HTSUS, by application of GRI 3(b), even though the textile liner contributed to the item’s visual impact and consumer appeal because the willow gave the item its structure and imparted the essential character of the item). CBP has consistently classified similar wickerwork hampers in heading 4602, HTSUS. See NY D82459, dated October 8, 1998 (laundry basket similar to a clothes hamper classified in heading 4602, HTSUS); NY R05080, dated November 7, 2006 (bamboo hamper with a cotton liner classified in heading 4602, HTSUS); NY N073777, dated September 21, 2009 (bamboo lattice hamper with a fitted and removable textile bag classified in heading 4602, HTSUS);
NY 895827, dated March 29, 1994 (rattan hamper set classified in heading 4602, HTSUS). Accordingly, the subject willow hamper is classifiable as basketwork or wickerwork of heading 4602, HTSUS via GRI 3(b) because the willow gives the hamper its structure.
Therefore, the instant trunk and hamper are classifiable in heading 4602, HTSUS, because they are not furniture and are made of willow.
HOLDING:
By application of GRIs 1 and 6, the subject willow trunk is classified under heading 4602, HTSUS, specifically under subheading 4602.19.12, HTSUS, which provides for “Basketwork, wickerwork and other articles, made directly to shape from plaiting materials or made up from articles of heading 4601; articles of loofah: Of vegetable materials: Other: Other baskets and bags, whether or not lined: Of willow.”
By application of GRIs 3(b) and 6, the subject willow laundry hamper with cotton liner is also classified under heading 4602, HTSUS, specifically under subheading 4602.19.12, HTSUS.
The column one, general rate of duty at the time of entry was 5.8% ad valorem. 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 at https://hts.usitc.gov/current.
Since the reclassification of the willow trunk and hamper, as indicated above, is the same as the liquidated rate, you are instructed to DENY 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 CBP Form 19, to the protestant, through its counsel, no later than sixty (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 this letter, the Office of Trade, Regulations and Rulings will make this letter available to CBP personnel, and to the public on the CBP Home Page 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