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HQ 964053




July 27, 2000

CLA-2 RR:CR:GC 964053ptl

CATEGORY: CLASSIFICATION

TARIFF NO.: 7323.93.0080; 7323.99.9060; 3924.90.5500.

Ms. Susan Parker
Import Manager
Schenker, Inc.
1300 Diamond Springs Road
Virginia Beach, VA 23455

RE: Stone Panel, Outdoor and Indoor Floor Standing Steel Waste Receptacles; HQ 962658.

Dear Ms. Parker:

This is in response to your request to the Director, Customs National Commodity Specialist Division, New York, on April 9, 2000, on behalf of Rubbermaid Commercial Products, LLC, for a ruling on the classification, under the Harmonized Tariff Schedule of the United States, (HTSUS), of various styles of waste receptacles. Your letter was forwarded to this office for response.

FACTS:

The merchandise consists of various models of waste receptacles and combination ashtray/waste receptacles, all of which are designed to stand on the floor to collect trash and other waste materials. Some articles have "stone panel" flat sides and tops that vary in size from 10 to 26 inch squares and range from 24 to 40 inches in height. Other articles are cylindrical and vary in diameter from 10 to 15 inches and in height from 15 to 36 inches. All the articles are primarily of steel construction with some aluminum components. The article's surfaces are either "stone panel," mirror stainless steel or painted. Some of the receptacles are intended to be used with either galvanized steel or molded plastic liners. Some of the articles are also capable of outdoor use.

ISSUE:

What is the classification of floor standing steel waste receptacles and combination waste receptacle/ashtrays ?

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.

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..

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.)

In your submission you noted that in NY 881909, dated January 25, 1993, Customs classified similar receptacles 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.).

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.). Pedestal ashtrays, mentioned in the EN, are usually "hour-glass" shaped, crafted with refined detail and flowing decorative lines to accessorize rooms of offices and fall into a class entirely unlike the large, stark cylinder ashtrays being classified.

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.

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 or cylinder ashtrays. The modern trend toward smoke-free buildings is forcing most ashtrays outside buildings where they would not be considered furniture. Those which remain inside function as waste receptacles since ash-producing products have been banned. 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 heading 9403, HTSUS.

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. Therefore, in accordance with 19 U.S.C. 1625(c), Customs will propose that NY 881909 be revoked.

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 and ashtrays are properly classified in this heading. Heading 7323, HTSUS, being descriptive of the articles and more specific is preferable than heading 7326, HTSUS. The "stone panel" siding on some of the receptacles is nothing more than a variation of alternative surface decorations available to the purchaser. The article itself remains essentially a steel waste receptacle.

If the galvanized and plastic liners will be imported together with the receptacles, they will be classified with the receptacle. However, if they are imported separately, the galvanized liner will be classified in subheading 7323.99.9060, HTSUS. Plastic liners, imported separately will be classified in subheading 3924.90.5500, HTSUS.

See HQ 962658, dated July 18, 2000, for a similar ruling.

HOLDING:

Floor standing steel waste receptacles and waste receptacle/ashtray cylinders are classified in either subheading 7323.93.0080, HTSUS, or subheading 7323.99.9060, HTSUS, depending on the exterior surface of the article.

Galvinized steel liners, imported separately, will be 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.

Plastic receptacle liners, imported separately, will be classified in subheading 3924,90.5500, HTSUS, which provides for table, kitchen or other household articles and parts thereof, of plastics, other, other.

Sincerely,

John Durant, Director

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