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HQ 961072




September 12, 2002

CLA-2 RR:CR:TE 961072 SG

CATEGORY: CLASSIFICATION

TARIFF NO.: 4415.10.90

Port Director U.S. Customs
110 S. 4 Street
Minneapolis, MN 55401

RE: Application for Further Review of Protest Number 3501-97-100022; Classification of Stained Crate and Slat Bottom Box: Packing Container vs. Decorative: Heading 4415

Dear Sir:

This is in response to the request for further review of Protest No. 3501-97-100022, timely field on February 19, 1997, by the Fritz Companies, Inc. on behalf of its client, Tsumura International Inc., against a rate advance. The protest involves two styles of wooden boxes, which were entered on June 3, 1996.

When entered the boxes were classified in subheading 4421.90.9840, of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), as other articles of wood. On November 4, 1996, after examination of samples taken from the shipment, it was determined that the merchandise was primarily packing containers properly classifiable under subheading 4415.10.9000, HTSUSA. Customs issued a Notice of Action on Customs Form 29 to the protestant on November 4, 1996, advising the protestant of a change in classification.

The protest challenges Customs reclassification and claims that the proper classification of the merchandise is under subheading 4420.90.8000, HTSUSA, as wooden furnishings.

FACTS:

The merchandise involved in this protest consists of two open wooden containers without lids or tops. The containers are stated to be sanded and stained.

One sample resembles a crate and measures approximately 6 1/4 inches long by 4 3/8 inches wide and 1 7/8 inches high. It has four solid sides each approximately 5/16 inch thick. The sides are mitered. The bottom consists of four 3/4 inch wide slats with three 3/8 inch wide open spaces between them. This piece is nailed and glued together.

The other sample resembles a tray and has a solid wood bottom and four solid 1/4 thick sides that flare outward. The top perimeter of the sides (5 inches by 3 3/8 inches) is larger than the bottom (3 7/8 inches by 2 3/4 inches). The sides and bottom pieces appear to have been rabbeted. This piece is glued together.

It is unclear which sample belongs to which invoice description. Possibly the "honey stain crate" refers to the tray type container and the "slat bottom box" refers to the crate container.

The containers will be imported empty and will be used after importation to hold and market soap and other bath articles. The catalogue pages submitted show the tray for sale containing a 2 ounce gel, a 4.2 ounce soap, and two bath drops, the crate does not appear to be in the pictures.

These boxes will hold and display soap while being marketed and it is claimed that the boxes are intended for reuse by consumers as holders for soaps, knick knacks, etc. It is believed that the containers are more than just packing boxes and that they should be classified as other small furnishings of wood under heading 4420, HTSUS.

ISSUE:

Is the merchandise in question classifiable under heading 4415, HTSUS, as packing boxes or crates, or under heading 4420, HTSUS, as articles of wood furniture?

LAW AND ANALYSIS:

Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI's taken in order.

Additionally, the Explanatory Notes (EN’s) to the Harmonized Commodity Description and Coding System constitute the official interpretation of the nomenclature at the international level. The EN’s are not legally binding. However, they do represent the considered views of classification experts of the Harmonized System Committee. It has therefore been the practice of the Customs Service to follow, whenever possible, the terms of the EN’s when interpreting the HTSUS.

Heading 4415, HTSUS, provides for, inter alia, packing cases, boxes and crates. Heading 4410, HTSUS, provides for, inter alia, wood marquetry and inlaid wood, cases for jewellery or cutlery and similar articles of wood, and wood articles of furniture not falling in Chapter 94.

The EN to heading 4415 reads in relevant part:

(I) Packing Cases, Boxes, Crates,
Drums and Similar Packings

This part of the heading includes:

(1) Packing cases and boxes with solid sides, lids and bottoms, used for general packing and transport purposes.

(2) Crates, fruit or vegetable boxes, egg trays and other containers with slatted sides and open tops (including those of a kind used for the transport of glassware, ceramic products, machinery, etc.).

(3) Boxes made of sliced or peeled wood (but not those of plaited wood) of the kind used for packing cheese, pharmaceutical products, etc.; match-boxes (including those with a striking surface) and conical open containers for marketing butter, fruit, etc.

(4) Drums and barrel-shaped containers, not of the kind made by coopers, such as are used for the transport of dry colours, chemicals, etc.

These containers may be presented without a lid ("open" containers such as cases, crates, etc.). They may be unassembled or partly assembled, provided the wood is in sets of the parts necessary to make a complete container or an incomplete container having the essential character of a complete container. Where the wood is not in such sets, it is to be classified as sawn or planed wood, plywood, etc., as the case may be.

The packing cases, etc., of this heading may be simply nailed or dovetailed or otherwise jointed. They may be fitted with hinges, handles, fasteners, feet or corner pieces, or lined with metal, paper, etc.

Used boxes, crates, etc., capable of further use as such, remain classified in this heading, but those not usable except as fuel are excluded (heading 44.01).

The heading also excludes:
(b) Caskets, cases, and similar articles of heading 44.20.

The EN to Chapter 4420 reads in relevant part:

This heading covers panels of wood marquetry and inlaid wood, including those partly of material other than wood.

It also covers a wide variety of articles of wood (including those of wood marquetry or inlaid wood), generally of careful manufacture and good finish, such as : small articles of cabinetwork (for example, caskets and jewel cases); small furnishing goods; decorative articles***.

It is protestant's contention that unlike New York ruling (NY) A83280, dated May 21, 1996, in which a similar product was determined to be packing boxes classifiable under subheading 4415.20.9000, HTSUSA, these boxes are more than just packing boxes. Protestant claims that these wooden containers are of careful manufacture and good finish with carefully worked, finely sanded wood pieces. It is claimed that the boxes are marketed with the intention the purchases will reuse the container as a holder for soaps, knick knacks, etc. A marketing photo from Tsumura's Vitabath Naturals catalog showing one of the boxes is attached to the protest. It is claimed that the marketing theme is one of a simple rustic natural wood. It is protestant's contention that the merchandise is classifiable under subheading 4420.90.8000, HTSUSA, as small furnishing goods.

The information submitted by the protestant indicates that the containers are being imported primarily to be used by Tsumura to hold and market their soaps and other bath articles. Holding and marketing are functions related to packing and transport.

It is claimed that the containers may be reused by consumers as holders for soaps and knick knacks. The catalogue pages submitted by the protestant show five different wooden containers (only one of which, the tray, is at issue here), each of which contain soap and other bath products. The pages do not emphasize the reusability of the wooden containers. The catalogue simple states "a terrific value in reusable wood container" for the tray. The crate at issue here is not shown on the catalogue pages submitted to us. Of the five wooden containers pictured, only two are said to be reusable; although no statement of how they would be reused is made. The other containers are merely described as "wooden containers" which help to make the merchandise they contain "great giftables". It appears from the catalogue that these wooden containers are simply fancier packing to hold an assortment of bath articles for retail sale, especially as gifts.

We have psychically examined the samples before us. We note that the boxes have ends which have been either mitered or rabbeted-features generally not found on packing boxes. The boxes have also been sanded and stained, however we note that packing cases are often sanded and stained for handling and preservative purposes. The merchandise before us, however, has not been otherwise decorated, carved, or cut into shapes to make them appealing for use as the kind of containers one places on top of a table and uses for holding knick knacks and other small items.

It is claimed that the crate may be reused as a holder for soap or for knick knacks. However, other than the slat bottom (a feature also common in packing crates) there is nothing in the design or construction of the crate which clearly shows it is designed to function as a soap dish. It is lacking any special features, such as a non-slip bottom or treatment with either a water resistor or repellant, which would make it suitable for use as a soap dish. In addition, the sides are higher and the overall size is larger than most soap dishes which would make it awkward to use as a soap dish. Any reuse as a soap holder would in our view be considered to be fugitive. Because of the open slat bottom, any reuse of the crate for knick knacks would be limited.

These containers are distinguishable from other containers determined to be classifiable as separate wooden articles of heading 4420, HTSUS. The wooden holders for cassette tapes classified in HQ 951408, dated August 11, 1992, were in the shapes of various objects (i.e., a cradle, a truck, and Noah's ark). They were decoratively shaped and painted, and clearly intended as a decorative holder to appeal to consumers and amuse children. In addition, the holders were used throughout the life of the cassettes as decorative storage containers; as such they were clearly intended to be placed on other furniture such as a dresser or shelf. The containers under protest are of fairly plain construction and are not decorated. They are not clearly designed for use as wooden articles of furniture.

The containers before us are also distinguishable from a number of containers which, although initially used to hold bath products, were more clearly designed to be used as separate articles. In NY B88584 (September 4, 1997), the wood container was a crate with a bear shaped cutout shape and metal screen. The mini tray classified in NY C82503 (December 29, 1997) had scalloped edges and a stand-like bottom. The "crate" in NY C84267 (March 2, 1998) had scalloped edges. The "crate" in NY C85224 (March 20, 1998) had a metal leaf and metal loop handles. All of these containers were also decoratively painted. These containers had solid sides and bottoms. They were in shapes unusual for ordinary packing containers. Because of their unusual shapes, additional metal parts, extensive decoration, and cutouts, these containers were more clearly designed for use as separate articles other than just packing containers. These containers were classified as wooden articles of furniture in subheading 4420.90.80, HTSUSA. The containers under protest are not clearly designed for use as anything other than packing containers because they are not unusually shaped and decorated.

The crate and tray containers under protest are more like the containers ruled on in NY A83280 (May 21, 1996) and NY A82974 (May 15, 1996), in which small open containers used to hold and market toiletries at retail, of plain construction and not decorated, were determined to be principally intended for use as packing containers, and classified in subheading 4415.10.90, HTSUSA.. Any reuse as soap holders was considered to be fugitive. Also see, NY 816039 (November 21, 1995), NY 862063 (April 29, 1991).

Similarly, the wooden crate and tray are primarily packing containers. Based on the information submitted as well as the examination of the samples, the only clearly designed use of these containers is for holding and marketing merchandise at retail. Wooden crates and trays such as those before us are not unusual packings for toiletries. Any reuse as separate article is not evident and has not been clearly demonstrated. This use is covered by the terms of heading 4415 which provides for packing cases, boxes, crates, drums and similar packings of wood.

Accordingly, we find that the merchandise was correctly liquidated as packing containers under subheading 4415.10.9000, HTSUSA.

HOLDING:

The protest should be DENIED.

The merchandise at issue is classifiable under subheading 4415.10.9000, HTSUSA, the provision for "Packing cases, boxes, crates, drums and similar packings, of wood; cable-drums, of wood; pallets, box-pallets and other load boards, of wood; pallet collars of wood: Cases, boxes crates, drums and similar packings: Other." The 2002 general column one rate of duty is 10.7 percent ad valorem.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision.

Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.treas.gov., by means of the Freedom of Information Act and other methods of public distribution.

Sincerely

Myles B. Harmon, Acting Director,
Commercial Rulings Division


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