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HQ 086318

May 17, 1990

CLA-2 CO:R:C:G 086318 STB

CATEGORY: CLASSIFICATION

TARIFF NO.: 9403.60.80

Mr. Steven Sauer
Vice President
Grand Basket Company, Inc.
53-06 Grand Avenue
Maspeth, New York 11378

RE: Modification of Headquarter Ruling Letter 083184

Dear Mr. Sauer:

This letter is in response to a January 19, 1990, request by the Chief, National Import Specialist Branch I, New York Seaport, for a partial reconsideration of Headquarters Ruling Letter (HRL) 083184, dated September 28, 1989. The subject ruling letter concerned the classification of wicker shelves and fern trunks; the request for reconsideration concerns the classification of the wicker shelves only. Photographs of the items were submitted for our review.

FACTS:

In HRL 083184 this office classified certain wicker shelves under subheading 4420.90.80, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which is the provision for wooden articles not falling within Chapter 94 (furniture). The rate of duty was given as 5.1 percent ad valorem.

The subject wicker shelves consist of wicker frames with either wood shelf surfaces or woven wicker shelf surfaces. In either case, wicker is the component which imparts the essential character to the shelves because the sides and backs are covered with wicker. The shelves are available in various sizes and shapes, the largest measuring approximately 16 inches long by 7 1/2 inches wide by 24 inches high. They are designed to be hung on the wall or to be placed on top of a counter. They are intended for use as bathroom accessories.

ISSUE:

Whether the subject merchandise is considered "other shelved furniture", consistent with Chapter 94, Note 2, and therefore, classifiable in Chapter 94.

LAW AND ANALYSIS:

In HRL 083184 this office classified the subject wicker shelves under subheading 4420.90.80, HTSUSA, as wooden articles of furniture not falling within chapter 94. Upon further examination of the Chapter Notes and Explanatory Notes to Chapters 44 and 94, Customs has reevaluated its position and determined that the subject wicker shelves are not excluded by the Notes to Chapter 94.

Chapter 94, Note 2, provides, in pertinent part:

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 and unit furniture;

(b) Seats and beds.

Chapter Note 2, set forth above, excludes from headings 9401 to 9403 articles not designed to be placed on the floor or ground, but allows certain exceptions to this exclusion. One of these exceptions, provided in subpart (a) above, is "other shelved furniture." Consequently, if the subject wicker shelves meet the definition of "other shelved furniture", they are not barred from classification in heading 9403 by Note 2 to Chapter 94, and should be classified as other wooden furniture, other, under subheading 9403.60.80, HTSUSA.

In previous Headquarters Rulings, Customs ruled that the term "other shelved furniture" is subject to at least two interpretations. The first requires that an item which is in and of itself "furniture", have the additional feature of being equipped, fitted or otherwise furnished with shelves, to be "shelved furniture." The second interpretation of the term

"shelved furniture" includes furniture that is itself no more than a shelf within the definition. The exceptions to the exclusion of Note 2 are intended to allow classification under headings 9401 to 9403 of shelf type furniture and modular or unit-type furniture, all of which are intended to be supported by walls or placed on other furniture rather than placed on the floor or the ground. In recent Headquarters Rulings, Customs has ruled that the latter interpretation of the term "shelved furniture", which includes furniture which is itself no more than a shelf, is the correct interpretation.

In accordance with our previous decisions, the subject wicker shelves constitute "shelved furniture" for tariff purposes.

HOLDING:

Pursuant to Section 177.9(d) of the Customs Regulations (19 CFR 177.9(d)), HRL 083184 , which classified the instant wicker shelves under subheading 4420.90.80, HTSUSA, the provision for wooden articles of furniture not falling within Chapter 94, other, other, with a duty rate of 5.1 percent ad valorem, is hereby modified. For the reasons set forth above, the subject wicker shelves are properly classifiable under subheading 9403.60.80, as other wooden furniture, other, with a duty rate of 2.5 percent ad valorem. HRL 083184 is modified accordingly.

This modification is effective immediately but will have no retroactive effect. A copy of this ruling letter should be attached to the entry documents filed at the time this type of merchandise is imported.

Sincerely,

John Durant, Director

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