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HQ 958911



May 8, 1996

CLA RR:TC:MM 958911 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 8304.00.00

Mr. Jack D. Mlawski
Galvin & Mlawski
440 Park Avenue South-9th Floor
New York, New York 10016-8067

RE: NYRL 818256 affirmed; Bendable bookends; EN 83.04, 73.23

Dear Mr. Mlawski:

This is in reference to your letter on behalf of Zelco Industries, Inc., dated February 12, 1996, requesting reconsideration of New York Ruling Letter (NYRL) 818256 issued to you by the Area Director of Customs, New York Seaport, on January 22, 1996, concerning the classification of bendable bookends under the Harmonized Tariff Schedule of the United States (HTSUS). Copies of literature describing the article were submitted for our examination.

In NYRL 818256 you were advised that the subject bookends were classified under subheading 8304.00.00, HTSUS, which provides for desk-top filing or card-index cabinets, paper trays, paper rests, pen trays, office-stamp stands and similar office or desk equipment and parts thereof, of base metal, other than office furniture of heading 9403. You believe that the bookends could be considered a household article of base metal classifiable under subheading 7323.99.90, HTSUS, as table, kitchen or household articles of base metal.

FACTS:

Bendable bookends consist of two 17«" rods of nickel plated spring steel, capped with rubber tips which prevent marring or scratching of the shelf or book. When used, the bookends are bent and placed either between one end of the shelf and the books to be held or as a wedge between the books. Unlike other bookends, the subject article is not free standing. The subheadings under consideration are as follows:

7323.99.90 Table, kitchen or other household articles and parts thereof, of iron or steel; iron or steel wool; pot scourers and scouring or polishing pads, gloves and the like, of iron or steel: Other:
Other............................................................................3.4%

8304.00.00 Desk-top filing or card-index cabinets, paper trays, paper rests, pen trays, office-stampstands and similar office or desk equipment and parts thereof, of base metal, other than office furniture of heading
9403...........................................5%

ISSUE:

Are the bookends classifiable as desk equipment or as other household articles of base metal?

LAW AND ANALYSIS:

The classification of merchandise under the HTSUS is governed by the General Rules of Interpretation (GRI's). GRI 1, HTSUS, 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...."

In an effort to determine if the subject article is provided for under each heading, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) may be consulted. The ENs, although not dispositive nor legally binding, provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128, (August 23, 1989). En 83.04, pg. 1120-1121, states in pertinent part, that:

The heading covers filing cabinets, card-index cabinets, sorting boxes and similar office equipment used for the storage, filing or sorting of correspondence, index cards or other papers, provided the equipment is not designed to stand on the floor or is not otherwise covered by Note 2 to Chapter 94 (heading 94.03) (see the General Explanatory Note to Chapter 94). The heading also includes paper trays for sorting documents, paper rests for typists, desk racks and shelving, and desk equipment (such as book-ends, paperweights, ink-stands and ink-pots, pen trays, office-stamp stands and blotters).

The heading does not, however, cover waste paper baskets which are classified according to the constituent metal (e.g., in heading 73.26).

EN 73.23 pg. 1035-1036, states in pertinent part, that this heading covers:

A) TABLE, KITCHEN OR OTHER HOUSEHOLD ARTICLES AND PARTS THEREOF

This group comprises a wide range of iron or steel articles, not more specifically covered by other headings of the Nomenclature, used for table, kitchen or other household purposes; it includes the same goods for use in hotels, restaurants, boarding-houses, hospitals, canteens, barracks, etc.

These articles may be cast, or of iron or steel sheet, plate, hoop, strip, wire, wire grill, wire cloth, etc., and may be manufactured by any process (moulding, forging, punching, stamping, etc.). They may be fitted with lids, handles or other parts or accessories of other materials provided that they retain the character of iron or steel articles.

The group includes:

(1) Articles for kitchen use such as saucepans, steamers, pressure cookers, preserving pans, stew pans, casseroles, fish kettles; basins; frying pans, roasting or baking dishes and plates; gridirons, ovens not designed to incorporate heating elements; kettles; colanders; frying baskets; jelly or pastry moulds; water jugs; domestic milk cans; kitchen storage tins and canisters (bread bins, tea caddies, sugar tins, etc.); salad washers; kitchen type capacity measures; plate racks, funnels.

(2) Articles for table use such as trays, dishes, plates, soup or vegetable dishes, sauce tureens; sugar basins, butter dishes; milk or cream jugs; hors-d'oeuvres dishes; coffee pots and percolators (but not including domestic percolators provided with a heat source (heading 73.21)), tea pots; cups, mugs, tumblers; egg-cups, finger bowls, bread or fruit dishes and baskets; tea pot or similar stands; tea-strainers, cruets; knife-rests; wine cooling buckets, etc., wine pouring cradles; serviette rings, table cloth clips.

(3) Other household articles such as wash coppers and boilers; dustbins, buckets, coal scuttles and hods; watering-cans; ash-trays; hot water bottles; bottle baskets; movable boot-scrapers; stands for flat irons; baskets for laundry, fruit, vegetables, etc.; letter-boxes; clothes-hangers, shoe trees; luncheon boxes.

The group also includes iron or steel parts of the articles listed above, such as lids, grips, handles, separating compartments for pressure cookers, etc.

You suggest that subheading 8304.00.00, HTSUS, does not describe the subject bookends because the phrase "desk-top" in subheading 8304.00.00, HTSUS, strictly limits the scope of the provision to base metal equipment only used on a desk top. We disagree. The subheading language includes the phrase "and similar office or desk equipment"... This plain language clearly indicates the scope of the provision goes beyond desk top equipment to include other office equipment. This interpretation is supported by exemplars such as shelving and bookends, included in EN 83.04. Moreover, such a narrow interpretation would, in practice, transform this principle use provision into an actual use provision. Were Customs to implement your suggestion, we would have to examine the actual use of every bookend imported into the United States to determine whether it was a "desk top bookend" or a "other use" book end. The lack of detailed specific evidence of what characteristics present at importation would indicate the designation or the necessity for two separate classes of bookends leads Customs to find that the creation of two different bookend classes is not warranted.

According to the ENs, the subject article is described by both headings. Inasmuch as the subject article is prima facie described in two different headings, it cannot be classified according to GRI 1. When goods cannot be classified by applying GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI's are applied.

GRI 3 states, in pertinent part, that when 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.

EN 83.04 indicates by name, bookends as articles described in heading 8304. Alternatively, EN 73.23 merely provides for all base metal household articles, which are not more specifically covered by other headings. Therefore, subheading 8304.00.00, HTSUS, provides the most specific description of the bookends.

HOLDING:

The bookends are classifiable under subheading 8304.00.00, HTSUS, as desk-top filing or card-index cabinets, paper trays, paper rests, pen trays, office-stampstands and similar office or desk equipment and parts thereof, of base metal, other than office furniture of heading 9403, with a column one duty rate of 5% ad valorem. NYRL 818256 is affirmed.

Sincerely,

John Durant, Director
Tariff Classification Appeals

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