OT:RR:CTF:CPMM H286754 RGR
Center Director Consumer Products & Mass Merchandising CEE U.S. Customs and Border Protection 1 East Bay Street Savannah, Georgia 31401
Attn: Rebecca Brien, Import Specialist
RE: Application for Further Review of Protest No. 1703-17-100695; Tariff classification of wooden wall plaque with mason jars
Dear Center Director:
The following is our decision regarding the Application for Further Review (“AFR”) of Protest Number 1703-17-100695, timely filed on May 16, 2017, on behalf of Target General Merchandise Inc. (“Protestant”). The AFR concerns U.S. Customs and Border Protection’s (“CBP”) classification, under the Harmonized Tariff Schedule of the United States (“HTSUS”), of wooden wall plaques with mason jars.
FACTS:
The protested merchandise consists of wooden wall plaques with mason jars, which are described as wall art that is functional. It has a wooden base having three glass mason jars attached with thick steel wire. The jars can be used to store various household items. According to the Protestant, the subject merchandise is made of wood (50%), three glass jars (40%) and metal hardware (10%). The total value of the entire item is $9.95. The breakdown of value for each component is as follows: wood ($4.98), glass jars ($1.33 each) and metal hardware ($1.00). The glass jars are not pressed and toughened and do not include a lid.
The protested entry of wooden wall plaques with mason jars were entered on July 22, 2016, at the Port of Savannah (“Port”),and were liquidated on November 18, 2016, under subheading 7013.99.5000, HTSUSA (Annotated), as “Glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes: Other glassware: Other: Other: Other: Valued over $0.30 but not over $3 each,” at a duty rate of 30% ad valorem. Protestant filed this Protest and AFR on May 16, 2017, asserting that the subject merchandise is properly classified under subheading 9403.89.6015, HTSUSA, as “Oher furniture and parts thereof: Furniture of other materials, including cane, osier, bamboo or similar materials: Other: Other: Other household,” or alternatively, in subheading 7013.99.9000, HTSUSA, as “Glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes: Other glassware: Other: Other: Other: Valued over $3 each: Other: Valued over $5 each.”
ISSUE:
Whether wooden wall plaques with mason jars are classified under subheading 7013.99.5000, HTSUSA, as “Glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes: . . . Valued over $0.30 but not over $3 each”; under subheading 7013.99.9000, HTSUSA, as “Glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes: . . . Valued over $3 each: Other: Valued over $5 each”; under subheading 4420.10.0090, HTSUSA, as “wooden articles of furniture not falling within chapter 94: Statuettes and other ornaments, of wood”; or under subheading 9403.89.6015, HTSUSA, as “Other furniture and parts thereof.”
LAW AND ANALYSIS:
The protest was properly filed as a decision on classification under 19 U.S.C. § 1514(a)(2). The protest was timely filed within 180 days of liquidation of the entries. See 19 U.S.C. § 1514(c)(3).
Further Review of Protest Number 1703-17-100695 was properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(b) because the decision against which the protest was filed involves questions of law or fact, which have not been ruled upon the Commissioner of Customs or his designee, or by the courts.
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. Pursuant to GRI 6, classification at the subheading level uses the same rules, mutatis mutatis, as classification at the heading level.
The HTSUS provisions under consideration are as follows:
4420 Wood marquetry and inlaid wood; caskets and cases for jewelry or cutlery
and similar articles, of wood; statuettes and other ornaments, of wood;
wooden articles of furniture not falling within chapter 94:
4420.10.0000 Statuettes and other ornaments, of wood.
7013 Glassware of a kind used for table, kitchen, toilet, office, indoor decoration or
similar purposes (other than that of heading 7010 or 7018):
Other glassware:
7013.99 Other:
Other:
Other:
7013.99.5000 Valued over $0.30 but not over $3 each.
Valued over $3 each:
Other:
7013.99.9000 Valued over $5 each.
9403 Other furniture and parts thereof:
Furniture of other materials, including cane, osier, bamboo or similar
materials:
9403.89 Other:
9403.89.60 Other:
9403.89.6015 Other household.
* * *
Note 2 to Chapter 94 provides as follows:
2. 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;
* * * * *
The Explanatory Notes (“ENs”) to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff 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 these headings at the international level. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
The EN to GRI 3(b) states, in pertinent part:
RULE 3 (b)
(VI) This second method relates only to:
(i) Mixtures.
(ii) Composite goods consisting of different materials.
(iii) Composite goods consisting of different components.
(iv) Goods put up in sets for retail sales.
It applies only if Rule 3 (a) fails.
(VII) In all these cases the goods are to be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.
(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.
Examples of the latter category of goods are:
(1) Ashtrays consisting of a stand incorporating a removable ash bowl.
(2) Household spice racks consisting of a specially designed frame (usually of wood) and an appropriate number of empty spice jars of suitable shape and size.
As a general rule, the components of these composite goods are put up in a common packing
The General ENs to Chapter 94 state that for the purposes of Chapter 94, the term
“furniture” means:
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.
The following :
Cupboards, bookcases, other shelved furniture (including single shelves presented with supports for fixing them to the wall) 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.
Seats or beds designed to be hung or to be fixed to the wall.
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).
The ENs to 94.03 provide:
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.
* * * *
Protestant asserts that under GRI 1, and within the terms of heading 9403, HTSUS, and note 2(a) to chapter 94, HTSUS, the subject wooden wall plaques with glass mason jars are “other shelved furniture” of subheading 9403, HTSUS. In the alternative, Protestant argues that under GRI 3(b), where the glass component comprises the essential character of the article, the subject merchandise is classified under heading 7013, HTSUS, and specifically under subheading 7013.99.9000, HTSUSA, as the entire value of all components of the merchandise is over $5. Protestant states that this argument is supported by a number of CBP rulings.
First, we address whether the subject merchandise is classifiable in heading 9403, HTSUS. As set forth in the ENs to chapter 94, the chapter excludes articles not designed for placing on the floor, such as small articles of cabinet work and small furnishing goods of wood of heading 4420, HTSUS. However, note 2 to chapter 94 provides for classification in that chapter even if the merchandise is not designed for placing on the floor, where such merchandise consists of other shelved furniture, including single shelves presented with supports for fixing them to the wall. Thus, in order to be classified as “other furniture” of heading 9403, HTSUS, the wooden wall plaques with mason jars must be considered “other shelved furniture.”
The term “shelf” is not defined in the tariff schedule or in the ENs. When a tariff term is not defined by the HTSUS or its legislative history, “the term’s correct meaning is its common meaning.” Mita Copystar Am. v. United States, 21 F.3d 1079, 1082 (Fed. Cir. 1994). The common meaning of a term used in commerce is presumed to be the same as its commercial meaning. Simod Am. Corp. v. United States, 872 F.2d 1572, 1576 (Fed. Cir. 1989). To ascertain the common meaning of a term, CBP may consult "dictionaries, scientific authorities, and other reliable information sources" and "lexicographic and other materials." C.J. Tower & Sons v. United States, 673 F.2d 1268, 1271 (C.C.P.A. 1982); Simod, 872 F.2d at 1576. The Oxford English Dictionary defines “shelf" as "[a] slab of wood (or other material) fixed in a horizontal position to a wall, or in a frame, to hold books, vessels, ornaments, etc.; one of the transverse boards in a bookcase, cabinet, or the like.” See Oxford English Dictionary, http://www.oed.com (last visited June 19, 2018). The Merriam-Webster Online Dictionary also defines “shelf” as “a thin flat usually long and narrow piece of material (such as wood) fastened horizontally (as on a wall) at a distance from the floor to hold objects.” See Merriam-Webster, https://www.merriam-webster.com/dictionary/chair (last visited June 19, 2018). Thus, in order for the subject merchandise to be classified as “other shelved furniture” of heading 9403, HTSUS, it must be fixed in a horizontal position to a wall at a distance from the floor to hold books, ornaments, and other objects.
Based on these dictionary definitions and contrary to the Protestant’s arguments, the subject merchandise are not akin to shelves. While mason jars are often designed for, sold as, and used for household storage, the subject merchandise does not consist of a flat slab of material fastened horizontally to hold objects. While the jars may store objects, they are mounted vertically. Accordingly, the wooden wall plaques with mason jars are not “other shelved furniture” of heading 9403, HTSUS.
The HTSUS provisions covering the subject merchandise refer only to part of its component materials. GRI 3(b) provides 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. The “essential character” of an article is “that which is indispensable to the structure, core or condition of the article, i.e., what it is.” Structural Industries v. United States, 29 CIT 180, 185; 360 F. Supp. 2d 1330, 1336 (2005). EN VIII to GRI 3(b) explains that “[t]he 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 the constituent material in relation to the use of the goods.” Recent court decisions on the essential character for GRI 3(b) purposes have looked primarily to the role of each material or component in relation to the use of the goods. See Structural Industries, 29 CIT 180; 360 F. Supp. 2d 1330; Conair Corp. v. United States, 29 CIT 888 (2005); Home Depot USA, Inc. v. United States, 30 CIT 445; 427 F. Supp. 2d 1278 (2006); aff’d 491 F.3d 1334 (Fed. Cir. 2007).
The subject wooden wall plaques are comprised of a plank made of wood, three mason-style jars made of glass, and metal hardware. They are designed for, sold as, and used for household storage vis-à-vis the glass jars. The total value of the item is $9.95 and the breakdown of value for each component is as follows: wood ($4.98), glass jars ($1.33 each), and metal hardware ($1.00). The function of the wood plank, which is classified in heading 4420, HTSUS, is to suspend the three glass jars up on a wall, while the glass jars, which are classified in heading 7013, HTSUS, provide the utilitarian function of the merchandise by storing items inside the jars and up off the ground. The appealing shape and vintage quality of the jars are also on display. Because the glass jars contribute to the use and decorative function of the merchandise more than any other component, we find that the essential character of the merchandise is imparted by the glass jars. As glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes, the glass jars are classified in subheading 7013, HTSUS. See, e.g., NY N260583, dated January 30, 2015 (classifying handled mason glass jars from China in heading 7013, HTSUS).
Protestant asserts that if the subject merchandise is classified in heading 7013, HTSUS, then it should be classified within subheading 7013.99.90, HTSUS, as “Glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes. . . : Other glassware: Other: Other: Other: Valued over $3 each: Other: components of the subject merchandise is over $5. In support, Protestant relies on NY N239466, dated April 9, 2013, where the essential character of a wood plaque containing three glass knobs was imparted by the glass knobs. The ruling describes the value of the entire article as over $5 but does not include any value breakdowns of the individual components. The subject merchandise in NY N239466 was classified in subheading 7013.99.90, HTSUS, as glassware valued over $5. However, NY N239466 is inapposite to the subject protest because that ruling contains no discussion of the individual components of the composite good. Protestant’s reliance on NY N259616, dated May 8, 2014, is also problematic for the same reason, i.e., the ruling does not provide individual value breakdowns for any of the components. The Protestant also relies on NY N023935, dated March 17, 2008, where the essential character of a “mirrored star wall decoration,” consisting of ten clear glass mirrored pieced framed in metal, was imparted by the glass component. That ruling described the value of the decorative glass article as over $5. No other value breakdowns were referenced. It is unclear from the ruling whether the entire article is valued over $5 or whether the glass component is valued over $5. If the entire article is valued over $5 without discussion of the individual components, this ruling is also irrelevant to the subject protest. On the other hand, if the glass component is valued over $5, this, in fact, supports CBP’s position that that the subject merchandise is classified based on the unit value of the individual glass jar rather than the entire article.
Moreover, in past rulings, CBP has classified composite goods based on either the value of the individual component that imparted the essential character under GRI 3(b), or based on the value of the individual component providing the proper classification under GRI 3(c), rather than the value of the entire article. See, e.g., NY N277225 (Aug. 9, 2016) (classifying a diffuser set with a glass vessel that imparts the essential character of the set based on the value of the glass vessel instead of the entire set); NY C89170 (June 22, 1998) (where a fishing kit was classified under GRI 3(c) based on the tariff heading for the fishing reel, the fishing kit was classified in subheading 9507.30.20, HTSUS, based on the value of the reel rather than the entire kit); and Headquarters Ruling Letter (“HQ”) 954414 (Mar. 25, 1994) (classifying a punch bowl set where the punch bowl imparts the essential character of the set in subheading 7013.39.20, HTSUS, based on the value of the punch bowl rather than the entire set). In the subject protest, the glass jars impart the essential character of the protested merchandise. The glass jars have a unit value of $1.33 each. Thus, in accordance with our past rulings, we find that the subject wooden wall plaque with glass mason jars were properly classified in subheading 7013.99.50, HTSUS, as “Glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes. . . : Other glassware: Other: Other: Other: Valued over $0.30 each but not over $3 each.”
HOLDING:
By application of GRI 3(b), the subject wooden wall plaque with glass mason jars are classified under heading 7013, HTSUS, specifically under subheading 7013.99.5000, HTSUSA, which provides for “Glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of heading 7010 or 7018): Other glassware: Other: Other: Other: Valued over $0.30 each but not over $3 each.” The column one, general rate of duty at the time of entry was 30% 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.
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 Trade, Regulations and Rulings will make the decision available to CBP personnel, and to the public on the Customs Rulings Online Search System (CROSS) at https://rulings.cbp.gov/ which can be found on the U.S. Customs and Border Protection website at http://www.cbp.gov and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division
Cc: William Huntley
Supervisory Import Specialist
U.S. Customs and Border Protection
1 East Bay Street Savannah, Georgia 31401