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HQ 956486


JUNE 14, 1994

CLA-2:CO:R:C:M 956486 JAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 9403.20.00

Ms. Judy Campbell
W. Y. Moberly, Inc.
Box 164
Sweetgrass, MT 59484

RE: Cup Concession Stand; Metal Refreshment Stand in Shape of Coca-Cola Cup; In-Door Out-Door Stand for Selling Drinks, Foodstuffs and Memorabilia; Metal Furniture; Structures of Iron or Steel, Heading 7308, Section XV, Note 1(k)

Dear Ms. Campbell:

In your letter, dated March 29, 1994, on behalf of Shelby Associated Securities, Inc., Calgary, you inquire as to the tariff classification of the Cup Concession Stand from Canada. Descriptive literature was submitted.

FACTS:

The article in question is a concession stand of sheet metal and steel tubing construction, resting on casters. It is used in shopping malls, airports, amusement parks, fairs and similar locations, inside and outside, to sell cold drinks, foodstuffs and memorabilia. These actual stands will be used in Atlanta during the 1996 Olympics for selling food, drink and commemoratives. In the overall configuration of a Coca-Cola cup, the stand weighs 1,500 lbs., is 10 feet high in the upright operational position and collapses to 83 inches while in transit. It consists of a top portion and bottom portion connected at the back to leave the middle open for one or more concessionaires. The top portion of the cup has a diameter of 7 ft. 8 in. and plastic signage that flashes Enjoy Coca-Cola. The bottom portion of the cup functions as the countertop.

The stand is equipped with plumbing and electrical hookups and operates on a single phase power source. A carbonator, ice chest and syrup dispensing head, all of United States origin, are sent to Canada and incorporated into the stand which is otherwise of Canadian origin. In operation, water from a municipal hookup is chilled as it is piped through the ice chest to the - 2 -
carbonator, the carbonated water then moving to the syrup dispensing head or tap on the countertop. The concession stand is wired to accommodate hot dog roasters, hot chocolate and pretzel machines but these are not a part of this importation.

ISSUE:

Whether the concession stand is furniture for tariff purposes.

LAW AND ANALYSIS:

Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). GRI 1 states in part that for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6.

Heading 7308, a provision for structures of iron or steel, and heading 9403, a provision for other furniture and parts thereof, are under consideration here. Customs has previously classified garden gazebos and other articles compellingly analogous to the instant concession stand in heading 7308. However, articles of chapter 94 are among the goods excluded from section XV (which includes chapter 73). Section XV, Note 1(k), HTSUS. Therefore, if heading 9403 is found to apply, heading 7308 is eliminated from consideration.

The Harmonized Commodity Description And Coding System Explanatory Notes (ENs) constitute the Customs Cooperation Council's official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the System. Customs believes the notes should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

Relevant ENs at p. 1574 state, in part, that for purposes of chapter 94 the term "furniture" means movable articles 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 hotels, theatres, cinemas, cafes and restaurants, among other locations. Similar articles for use in gardens, squares and promenades are also included in this category. - 3 -

In our opinion, the Cup Concession Stand comports with the requirements of this note. It is movable and designed to be placed on the floor; in addition, it is utilitarian, that is, it equips or furnishes the environs listed in the cited EN because it is designed to provide a particular service.

As a good wholly obtained or produced entirely in the territory of Canada and the United States, the Cup Concession Stand is eligible for the special tariff treatment accorded an originating good under the North American Free Trade Agreement (NAFTA). General Note 12, HTSUS.

HOLDING:

Under the authority of GRI 1, the Cup Concession Stand is provided for in heading 9403. It is classifiable in subheading 9403.20.00, HTSUS, a provision for other metal furniture. The rate of duty as an originating good under NAFTA is Free.

Sincerely,

John Durant, Director
Commercial Rulings Division


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