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HQ 962658




July 18, 2000

CLA-2 RR:CR:GC 962658ptl

CATEGORY: CLASSIFICATION

TARIFF NO.: 7323.93.0080; 7323.99.9060; 7615.19.9000.

Mr. Jimmie V. Reyna
Williams Mullen Clark & Dobbins
900 17th Street, N.W.
Suite 700
Washington, D.C. 20006

RE: Reconsideration of New York Ruling Letter D88319; Steel Waste Receptacles; HQ 950644; NY 881909.

Dear Mr. Reyna:

This is in response to a letter of March 17, 1999, from INTREX, LLC, requesting reconsideration of New York Ruling Letter (NY) 88319 issued to it, on March 5, 1999, concerning the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of a variety of waste receptacles of stainless steel and their related parts. That ruling classified the stainless steel waste receptacles in subheadings 7323.93.0080 and 7323.99.9060, HTSUS, depending on the type of steel; the aluminum sand pans in subheading 7615.19.9000, HTSUS; and the plastic liners in subheading 3924.90.5500, HTSUS. INTREX, LLC requested a review of the classification of the stainless steel waste receptacles and aluminum sand pans, suggesting the articles should be classified in subheading 7324.90.0000, HTSUS, which provides for sanitary ware and parts thereof. On July 30, 1999, you filed a supplemental request on behalf of INTREX, LLC in which you suggest the proper classification of the stainless steel waste receptacles and aluminum sand pans is subheading 9403.20.0030, HTSUS, which provides for office furniture. Reconsideration of Customs classification of the plastic liners was not requested.

In preparing this ruling, consideration was given to your presentation at our meeting on February 16, 2000, and to the samples you provided for examination.

FACTS:

The articles are described as follows:

Waste Receptacles, stainless steel, with or without liners of plastic or steel or aluminum sand pans. These are mirror stainless steel cylindrical waste containers with diameters of 10" or 15" and various heights from 15" to 36". The receptacles are of the following types: a dome top with a push door and spring; a flat top for insertion/use of a sand urn (receptacle); open top through use of a chute attached to top; or with side openings and a closed top.

Waste Receptacles, powder coated steel with or without liners of plastic or steel or aluminum sand pans. These articles are identical to the above except the outside of cold rolled steel exterior of the receptacles has been powder coated in colors of almond, white or black. Powder coating is a dry paint process using electroplating.

Liners of steel for waste receptacles, made of galvanized steel, having a handle and sealed at the bottom. Dimensions vary from 14" to 15.75" in diameter and from 21" to 29" in height.

Liners of plastic for waste receptacles, identical to the steel liners in dimension, but made of injection molded plastic.

Sand pans of aluminum for waste receptacles, made of deep spun or stamped aluminum 10.25" in diameter and 2.5" deep for use as an ash tray on waste receptacles designed to accept the tray.

ISSUE:

What is the classification of steel waste receptacles and associated parts?

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). The systematic detail of the HTSUS is such that virtually all goods are classified by application of GRI 1, that is, according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied in order.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes (ENs), although not dispositive or 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).

The HTSUS headings under consideration are as follows:

7323 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;

7323.93.00 Of stainless steel.

7323.93.0080 Other.

7323.99 Other:

Not coated or plated with precious metal:

Other:

7323.99.90 Other.

7323.99.9060 Other.

7324 Sanitary ware and parts thereof, of iron or steel:

7324.90.0000 Other, including parts.

7326 Other articles of iron or steel:

7326.90 Other:

Other:

7326.90.85 Other.

7326.90.8585 Other.

9403 Other furniture and parts thereof:

9403.20.00 Other metal furniture.

Other:

9403.20.0030 Other..

In the supplemental materials you filed, and during the meeting, you noted that you did not wish to pursue classification of the waste receptacles as sanitary ware in subheading 7324.90.0000, HTSUS, as had been originally requested. We agree that the articles are not classified in that heading. The ENs imply that sanitary ware of heading 7324 only include articles associated with cleaning or caring for the body and its hygienic functions.

As noted above, classification of goods is governed by the GRI headings and relevant section and chapter notes. Note 1(k) to Section XV, HTSUS, states that "This section does not cover: (k) Articles of Chapter 94 (for example, furniture, mattress supports, lamps and lighting fittings, illuminated signs, prefabricated buildings)". Therefore, because Chapter 73 is contained within Section XV, we must first determine whether the waste receptacles are articles of Chapter 94.

The General Chapter Notes to Chapter 94 state:

"For the purposes of this Chapter, the term “furniture” means:

(A) 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." (Emphasis in original.)

Your position is that the steel waste receptacles are office furniture and, as such, should be classified in subheading 9403.20.0030, HTSUS, as other metal furniture. The ENs to heading 9403 state:

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, etc.), and also furniture for special uses.

The heading includes furnitures for:

(1) Private dwellings, hotels, etc., such as: cabinets, linen chests, bread chests, log chests; chests of drawers, tallboys; pedestals, plant stands; dressing-tables; pedestal tables; wardrobes, linen presses; hall stands, umbrella stands; side-boards, dressers, cupboards; food-safes; bedside tables; beds (including wardrobe beds, camp-beds, folding beds, cots, etc.); needlework tables; foot-stools, fire screens; draught-screens; pedestal ashtrays; music cabinets, music stands or desks; play-pens; serving trolleys (whether or not fitted with a hot plate).

(2) Offices, such as: clothes lockers, filing cabinets, filing trolleys, card index files, etc.

However, the ENs further state:

The heading does not include:

(d) Waste-paper baskets (of plastics, heading 39.26; of basket or wickerwork, heading 46.02; of base metal, headings 73.26, 74.19, etc.).

Despite all the exemplars of articles considered to be furniture in the ENs, we do not find any whose use or function is comparable to the waste receptacles. All the various objects cited as examples of furniture covered by heading 9403 which are used to contain or store other articles have as a characteristic that they are designed to preserve or protect the contained article for future use (cabinets, linen chests, tallboys, clothes lockers, filing cabinets, etc.). Waste paper baskets, which are not designed to equip a building, office or room, but serve as temporary repositories of something no longer wanted or needed are specifically excluded from the heading.

According to the language of the HTSUS, furniture articles are intended "to equip" something. The Random House Dictionary of the English Language, (1973) defines the word "equip" as meaning: "To furnish or provide with whatever is needed for service or for any undertaking." Waste receptacles cannot be considered necessary for the functioning of an office, industry or building. We also note that the definition of furniture in Chapter 94 is not all-encompassing. By including the words "not included under other more specific headings" in the definition of furniture, the drafters of the ENs intended that Chapter 94 would not cover all "movable" articles constructed for placing on the floor. A more specific heading which better describes the article is preferable to the more general heading of furniture. One such more specific heading suggested by the ENs is 7326, HTSUS, which provides for waste-paper baskets.

The waste receptacles fall within the exclusionary language of EN 94.03 (d) on page 1703. That paragraph states: "The heading [covering furniture] does not include: (d) Waste-paper baskets of base metal, headings 73.26, 74.19, etc.)." While the Note specifically refers to heading 7326, HTSUS, through the use of "etc." it indicates that similar articles of other headings are likewise excluded from heading 9403.

We note that the ENs to heading 73.23, HTSUS, which covers table, kitchen or other household articles and parts thereof, states that it comprises a wide range of iron or steel articles used for table, kitchen or other household purposes and that it includes the same goods for use in hotels, restaurants, boarding-houses, hospitals, canteens, barracks, etc. Among goods specifically included in this heading are dustbins and ash-trays. According to the Random House Dictionary of the English Language, (1973), the term "dustbin" is chiefly a British term for an ash can or garbage can. In HQ 950644, issued December 27, 1991, Customs stated, "Recognizing that the English used in the EN's is British English, we believe the term dustbin therein is synonymous with the American terms trash can, refuse can, garbage can, and cart, as herein applicable." Thus, we safely state that steel waste receptacles are included within the scope of heading 7323, HTSUS.

The goods being classified are intended to be used to collect trash, litter and waste in public areas of buildings. This use is nothing more than an extension of a housekeeping function. Indeed, the personnel who empty such articles are frequently referred to as the "Housekeeping Staff." Accordingly, in view of the inclusion of both dustbins and ash-trays in heading 7323, HTSUS, we believe the subject waste receptacles, some of which happen to have ash-tray covers, are properly classified in this heading. Heading 7323, HTSUS, being descriptive of the articles and more specific is preferable than heading 7326, HTSUS.

As part of your request for reconsideration, you identified NY 881909, issued January 25, 1993, which classified apparently similar articles in heading 9403, HTSUS. We have reviewed that ruling and have determined that it is in error. In accordance with 19 U.S.C. 1625(c), Customs will propose modification of that ruling.

HOLDING:

Waste Receptacles, stainless steel, with or without liners of plastic or steel or aluminum sand pans are classified in subheading 7323.93.0080, HTSUS, which provides for table, kitchen or other household articles and parts thereof, of iron or steel, other, of stainless steel, other.

Waste Receptacles, powder coated steel with or without liners of plastic or steel or aluminum sand pans are classified in subheading 7323.99.9060, HTSUS, which provides for table, kitchen or other household articles and parts thereof, of iron or steel, other, other, not coated or plated with precious metal, other, other, other.

The Aluminum sand pans, when imported with the receptacles will be classified with the receptacle. When imported separately, they will be classified in subheading 7615.19.9000, HTSUS, which provides for table, kitchen or other household articles and parts thereof, of aluminum, other, other.

NY D88319, issued March 5, 1999, is affirmed.

Sincerely,

John Durant, Director

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