OT:RR:CTF:CPMM H281900 WMW
Melvin Moreland
Center Director
Consumer Products and Mass Merchandising Center of Excellence and Expertise
U.S. Customs and Border Protection
157 Tradeport Dr., Suite B
Atlanta, Georgia 30354
RE: Application for Further Review of Protest no. 0712-12-100216; Subheading 4421.99.9780, HTSUSA; Other articles of wood
Dear Center Director Moreland:
This is a response to the Application for Further Review (“AFR”) of Protest No. 0712-12-100216, filed on November 29, 2012 on behalf of Acco Brands USA LLC. (“Protestant”) against Customs and Border Protection’s (CBP) decision to classify the merchandise at issue under subheading 4421.90.97, Harmonized Tariff Schedule of the United States (“HTSUS”). Protestant entered the merchandise on June 28 and July 20, 2012, under subheading 7616.99.5090, HTSUS, which provides for “Other articles of aluminum: Other: Other”. CBP liquidated the entries on October 26, 2012 and May 31, 2013, respectively in subheading 4421.90.97, HTSUS, which provides for “Other articles of wood: Other: Other: Other: Other”. Protestant claims classification as entered or alternatively, as furniture of heading 9403.
FACTS:
The merchandise at issue are bulletin boards (model #2363, #2363L, #2364S, #2366, #2367 and #2367L) mounted inside an aluminum frame with an aluminum framed, hinged, polycarbonate locking door. The bulletin boards consist of three layers. Models #2363, #2366 and #2367 contain a front layer of cork, a middle layer of fiberboard, and a grey plastic back. Models #2363L, #2364S and #2367L contain a front layer of fabric, a middle layer of Corrugated paperboard and a grey plastic back. The thickness of the front layer and of the back layer is less than half the thickness of the middle layer. The front and middle layers function to hold the push pin in place. The plastic backer provides a waterproof layer for protection of the wood or paper products. The bulletin boards vary in size from 2’ x 3’ to 4’ x 6’. Protestant submitted costs and weight for each material component for each model. The plastic component comprised the greatest weight and the aluminum the greatest value in each of the models.
ISSUES:
Whether the instant merchandise is classified under subheading 7616, HTSUS as articles of aluminum or as other articles of wood of heading 4421, 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 with respect to entry 00463382812, within 180 days of liquidation for entries made on or after August 1, 2014. (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)). However, one entry was not liquidated until May 31, 2013, after the filing of the present protest, and as such the protest was untimely filed in this entry.
Further Review of Protest No. 0712-12-100216 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 certain CBP rulings concerning allegedly similar merchandise.
Classification of goods under the HTSUS is governed by the General Rules of Interpretation (“GRIs”). GRI 1 provides that classification 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 may then be applied. Pursuant to GRI 6, classification at the subheading level uses the same rules, mutatis mutandis, as classification at the heading level.
GRI 3 states, in pertinent part:
When by application of [GRI] 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows: (a) The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods . . . , those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods. (b) Mixtures, composite goods consisting of different materials or made up of different components . . . which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.
The HTSUS provisions at issue are as follows:
4421
4421 Other articles of wood:
Other:
4421.99 Other:
Other:
4421.99.97 Other:
7616 Other articles of aluminum:
Nails, tacks, staples (other than those of heading 8305), screws, bolts, nuts, screw hooks, rivets, cotters, cotter pins, washers and similar articles:
7616.99 Other:
7616.99.51 Other:
Other:
7616.99.5170 Other:
9403 Other furniture and parts thereof:
9403.20.00 Other metal furniture
Other:
Counters, lockers, racks, display cases, shelves, partitions and similar fixtures
9403.20.0078 Storage lockers, other than exchange lockers as described in statistical note 3 to this chapter
The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. 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 CBP’s practice to consult, 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 44.21 states, in relevant part, that this heading covers:
[A]ll articles of wood manufactured by turning or by any other method, or of wood marquetry or inlaid wood, other than those specified or included in the preceding headings and other than articles of a kind classified elsewhere irrespective of their constituent material (see, for example, Chapter Note 1)
EN 76.16 states, in relevant part, that this heading covers:
[A]ll articles of aluminium other than those covered by the preceding headings of this Chapter, or by Note 1 to Section XV, or articles specified or included in Chapter 82 or 83, or more specifically covered elsewhere in the Nomenclature.
EN 94.03 states, in relevant part, that this heading covers:
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 use.
Note 2 to chapter 94 states that “articles (other than parts) referred to in headings 9401 to 9403 are to be classified in those heading only if they are designed for placing on the floor or ground.” Note 2 continues to list a few exceptions to the rule if the products are designed to be hung, to be fixed to the wall or to stand one on the other. The exceptions are:
Cupboards, bookcases, other shelved furniture (including single shelves presented with supports for fixing them to the wall) and unit furniture;
Seats and beds
The items at issue are designed to be hung on a wall, which according to Note 2, should exclude them from classification in chapter 94 unless they fit into the two exceptions above described. Bulletin boards with an aluminum-polycarbonate case are not cupboards, bookcases, unit furniture or other type of shelved furniture, but are instead designed to hold and display loose papers flat to their surface. Neither could they be considered seats or beds capable of sustaining the weight of a human being. Protestant cites to a previous CBP ruling, NY N167395, as support for the assertion that the present articles could be classified in chapter 94, HTSUS. NY N167395 is directed to lockers that are either floor standing or wall-mounted. Lockers are for the purposes of storing objects in a secure manner, utilizing either the bottom of the locker or shelves within the locker to support said objects. These are very similar to the shelved furniture and cupboards described in exception (a) of Note 2. However, the bulletin boards at issue in this protest do not have any kind of shelving designed to support objects, but are designed and used to display loose papers through the usage of binding agents such as push pins, staples etc. to maintain the position of the papers in the bulletin board. As such, the bulletin boards cannot fit into either of the exceptions to Note 2 and therefore cannot be classified in chapter 94.
As the instant article is partially described in various headings, (as an article of wood of heading 4421 and an article of aluminium of heading 7616), it is not covered in its entirety by any one heading at GRI 1. Therefore, we need to proceed to GRI 3. GRI 3(a) does not apply because there is no heading that provides a specific description that clearly identifies a bulletin board encased with an aluminium-polycarbonate case.
GRI 3(b) provides that mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if it consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.
EN VIII to GRI 3(b) states that “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.” Essential character is that which is indispensable to the structure, core or condition of the article, i.e., what it is. The Home Depot U.S.A., Inc. v. United States, 427 F. Supp. 2d 1278, (Ct. Int’l Trade 2006) aff’d 491 F.3d 1334 (Fed. Cir. 2007).
CBP has previously ruled on the subject matter of bulletin boards in Headquarters rulings (HQ) 954862 and 955013, dated October 19, 1993 and January 14, 1994 respectively. In HQ 954862, the bulletin boards at issue were composed of an agglomerated cork face sheet laminated to a wood fiberboard backing with either a plastic or aluminum frame. The ruling concluded that the function of the bulletin board was crucial to determine its essential character. The bulletin boards were described as being “’tack boards’ for posting messages, announcements, pictures, etc., in the office, school or home. In order to carry out that function, they are designed essentially to be articles capable of holding and displaying loose papers by the use of tacks, push-pins or the like.” The frames were specifically found to be superfluous, and that the articles could carry out their function with the fiberboard alone. Thus was the fiberboard considered to impart the essential character to the bulletin board due to its functional dominance.
In HQ 955013, the bulletin boards at issue were composed of an agglomerated cork face sheet, backed by a wood fiberboard and a third sheet of wood hardboard with an aluminum frame, and a bulletin board constructed of corrugated paperboard covered on both sides by a face sheet of agglomerated cork with a wooden frame. The ruling concluded that the material component that imparts essential character to the boards is the material that provides the boards the means to perform their principal function. The bulletin boards containing fiberboard were ruled to have their essential character be fiberboard, and the bulletin boards containing corrugated paperboard were ruled to have their essential character be corrugated paperboard.
Upon review of this issue, we find that although the aluminum case does contribute more to the value of the product at hand, and the plastic components contribute more to the weight, the bulletin board itself provides the essential character of the good as imported. If the case were omitted from the product, the bulletin board would still be functional as a bulletin board. On the other hand, were the case to be imported separately, it would not be functional as a product until it is used in conjunction with a bulletin board. Similarly, in Better Home Plastics Corp. v. United States, referenced by Protestant, the court found that despite the plastic liner being of less value and not decorative, it provided the essential character to the set at issue due to its ability to prevent water from escaping from the shower, protecting the fabric from mildew and it can serve the intended function without the other components of the set. Better Home Plastics Corp. v. United States, 20 C.I.T. 221, 225. Finally, Protestant stated that “the product is not a bulletin board as reflected by its price, which is substantially higher than a bulletin board that has no protective casing” showing that even the Protestant acknowledges that this product is still a bulletin board, notwithstanding the addition of an aluminum-polycarbonate case.
In view of the foregoing, the merchandise at issue is classified under the heading 4421, HTSUS, and more specifically under subheading 4421.99.9780, HTSUSA, (Annotated) as an other article of wood.
HOLDING:
By application of GRI 3(b), bulletin boards with aluminium-polycarbonate case are classified under subheading 4421.99.9780, HTSUSA, as, “Other articles of wood: Other: Other: Other: Other: Other” The general, column one rate of duty is 3.3% ad valorum.
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 the World Wide Web at www.usitc.gov.
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 of 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,
Craig T. Clarke, Director,
Commercial and Trade Facilitation Division