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HQ 956969


April 4, 1995

CLA-2 R:C:M 956969 LTO

CATEGORY: CLASSIFICATION

TARIFF NO.: 9403.90.80

District Director
U.S. Customs Service
1 East Bay Street
Room 104
Savannah, Georgia 31401

RE: IA 44/94; Steel partition tiles; HQ 087193; NY 847938, HQ 950123 revoked; furniture; General EN to chapter 94

Dear District Director:

This is in response to your memorandum of July 1, 1994 (CLA- 2-SV:D:DS), requesting the classification of steel tiles under the Harmonized Tariff Schedule of the United States (HTSUS). Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625(c)(1)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. No. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed revocation of HQ 950123, dated October 18, 1991, and NY 847938, dated December 22, 1989, was published March 1, 1995, in the Customs Bulletin, Volume 29, Number 9.

FACTS:

The articles in question are steel tiles with support brackets and bent edges. The tiles are used in the construction of modular office furniture. They are designed to be attached to the Ethospace unit, a free-standing steel frame or partition. The Ethospace unit is a part of the Ethospace system, a modular furniture system. The Ethospace units rest upon metal feet and are not designed to be attached to floors, ceilings or walls. Their modular construction allows them to be easily reconfigured to meet the changing demands of the work environment.

The importer contends that the steel tiles are classifiable under subheading 9403.90.80, HTSUS, which provides for other parts of furniture. In HQ 950123, dated October 18, 1991, these - 2 -
tiles were classified under subheading 7308.90.90 (now, 7308.90.95), HTSUS, which provides for plates, rods, angles, shapes, sections, tubes and the like, prepared for use in structures, of iron or steel.

ISSUE:

Whether the steel tiles are classifiable as plates, rods, angles, shapes, sections, tubes and the like, prepared for use in structures, of iron or steel, under subheading 7308.90.95, HTSUS, or as parts of furniture under subheading 9403.90.80, HTSUS.

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI's) to the HTSUS govern the classification of goods in the tariff schedule. GRI 1 states, in pertinent part, that "for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes . . . ." The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the Customs Co-operation Council's official interpretation of the Harmonized System. While not legally binding, the ENs provide a commentary on the scope of each heading of the Harmonized System, and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

The headings at issue are as follows:

7308 Structures . . . and parts of structures . . . of iron or steel; plates, rods, angles, shapes, sections, tubes and the like, prepared for use in structures, of iron or steel

9403 Other furniture and parts thereof

In HQ 950123, dated October 18, 1991, which affirmed the decision in NY 847938, dated December 22, 1989, we found that the steel tiles in question were classifiable under heading 7308, HTSUS. However, in HQ 950123, we stated that the tiles "form walls which are used to partition off an area into separate rooms." It has come to our attention that the tiles are actually attached to a steel frame which represents a free-standing partition. The partition is a component of the Ethospace system, which is a modular furniture unit. The tiles are not "prepared for use in [a] structure[]," and therefore, cannot be classified under heading 7308, HTSUS.

In HQ 087193, dated May 30, 1990, Customs classified panels (the Budget Series and Designer Series) used in the construction of modular office furniture as furniture under heading 9403, HTSUS. We determined that the panels, which were movable, free- standing, constructed to be placed on the floor and designed for use in an office, were within the meaning of the term "furniture," as that term is defined by the General EN to chapter 94, pg. 1574.

General EN to chapter 94, pg. 1574, states that for the purposes of this chapter, the term furniture is defined, in part, as follows:

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 . . . offices . . . [emphasis in original].

The steel tiles in question are used in the construction of modular office furniture. They are designed to be attached to a free-standing steel frame or partition. This steel frame or partition, like the Budget and Designer Series panels of HQ 087193, is movable, free-standing, constructed to be placed on the floor and designed for use in an office. Accordingly, the partition meets the definition of "furniture," and the tiles, which are parts of the partition, are classifiable as parts of furniture under subheading 9403.90.80, HTSUS. It is therefore necessary to revoke HQ 950123 and NY 847938.

HQ 950123 was a ruling on a specific protest. A protest is designed to handle importations which have entered the United States and been liquidated by Customs. A final determination of a protest, pursuant to Part 174, Customs Regulations (19 CFR Part 174), cannot be modified or revoked as it is applicable only to the entry protested. Furthermore, Customs lost jurisdiction over the protested entries in HQ 950123 when notice of denial of the protest was received by the protestant. See San Francisco Newspaper Printing Co. v. United States, 9 CIT 517, 620 F.Supp. 738 (1985).

However, Customs can modify or revoke a ruling to change the legal principles set forth in the protest letter. Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625(c)(1)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057), Customs may propose a modification or revocation of a prior interpretive ruling or decision by publication and solicitation of comments in the Customs Bulletin. Thus, although HQ 950123 has been revoked, it will not affect the
entry which was the subject of Protest 1704-90-000114, but will be applicable to any unliquidated entries or future importations of similar merchandise.

HOLDING:

The steel partition tiles are classifiable under subheading 9403.90.80, HTSUS, which provides for other parts of furniture. The corresponding rate of duty for articles of this subheading is 3.2% ad valorem.

In accordance with 19 U.S.C. 1625, this ruling will become effective 60 days after publication in the Customs Bulletin. Publication of rulings or decisions pursuant to 19 U.S.C. 1625 does not constitute a change of practice or position in accordance with section 177.10(c)(1), Customs Regulations (19 CFR

This decision should be mailed by your office to the internal advice requestor no later than 60 days from the date of this letter. On that date, the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director

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