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HQ 967149

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November 2, 2004

CLA-2-RR:CR:GC 967149 IOR

CATEGORY: CLASSIFICATION

TARIFF NO.: 8302.41.6080

Patricia M. Hanson, Esq.
KMZ Rosenman
525 West Monroe St.
Suite 1600
Chicago, IL 60661-3693

RE: HQ 966458 clarified; top tracks and hanging standards

Dear Ms. Hanson:

This is in response to your request, dated May 18, 2004, on behalf of your client The Container Store, Inc. (“Container Store”), that Customs and Border Protection (“CBP”) reconsider HQ 966458, issued to the CBP Port Director, Dallas, on June 19, 2003, regarding the classification of top tracks and hanging standards under the Harmonized Tariff Schedule of the United States (HTSUS). That ruling classified the top tracks and hanging standards in subheading 8302.41.60, HTSUS, which provides for “Base metal mountings, fittings, and similar articles: Other mountings, fittings, and similar articles, and parts thereof: Suitable for buildings: Other: of iron or steel, of aluminum or of zinc.”

You contend that the merchandise should be classified in subheading 9403.90.80, HTSUS, which provides for “Other furniture and parts thereof: Parts: Other: Other.” You assert that the top tracks and hanging standards form an essential part of the structure of the shelving systems, which precludes classification under heading 8302, HTSUS. In the alternative, you contend that the merchandise should be classified in subheading 8302.50.00, HTSUS, as “Base metal mountings, fittings, and similar articles; base metal hat racks, hat-pegs, brackets and similar fixtures;: Hat-racks, hat pegs, brackets and similar fixtures, and parts thereof.”

Our decision follows a teleconference held between you and your client and staff from the General Classification Branch in this office, and review of your additional submission dated September 28, 2004. We have reviewed HQ 966458 and found it to be correct.

FACTS:

The subject merchandise consists of top tracks and hanging standards that are used in constructing a wall shelving system for storage. Both of these articles are made of steel. The top tracks have a small lip along the bottom and are affixed to a wall by means of screws. The hanging standards are specifically made to hook onto the top tracks, by means of a groove that fits over the lip of the top tracks. In constructing a shelving system, the standards are placed against a wall, but they are not affixed to the wall by means of screws or by any other type of fasteners. The hanging standards are affixed only to the top track. In the reconsideration request it is stated that the standards cannot be mounted directly to the wall. Once the standards have been hung onto the top track, brackets can be attached to them at various desired levels. Shelves are secured to the brackets to form a shelving unit. Closet rod holders, closet rods, and gliding shelves can be attached to the brackets as well. It appears that the shelving systems are primarily intended for use as storage units in closets, however in the literature submitted with respect to HRL 966458, they are also shown as shelving units for use in other rooms of the home, including kitchens and family rooms.

The shelving system incorporates a patented design, and it is asserted that each component of the shelving system is designed for use solely with the other components of the patented system. It is stated that the top track and hanging standard can only function in their intended manner when they are connected to other components of the system.

The top tracks are imported in 32 inch, 56 inch and 80 inch lengths and can be cut to any size to fit the users’ needs. The hanging standards also come in three lengths: 36 inch, 60 inch and 84 inch. The top tracks and the hanging standards are not necessarily imported together because a purchaser may buy different sizes depending on the size of the shelving that will be built. In other words, these items are not imported as a unit because the shelving is designed to custom fit a customer’s needs. The parts are pulled to create and build a shelving unit.

ISSUE:

Whether the top tracks and hanging standards are classified under heading 8302, HTSUS, as base metal mountings, fittings and similar articles or as other furniture and parts thereof under heading 9403, HTSUS. If the top tracks and hanging standards are classified in heading 8302, HTSUS, whether they are classified as mountings suitable for buildings under subheading 8302.41, HTSUS, mountings suitable for furniture under subheading 8302.42, HTSUS, or brackets under subheading 8302.50, HTSUS.

LAW AND ANALYSIS:

Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the HTSUS is such that most 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 2 through 6 may then be applied in order.

The subheadings under consideration are as follows:

Base metal mountings, fittings and similar articles suitable for furniture, doors, staircases, windows, blinds, coachwork, saddlery, trunks, chests, caskets or the like; base metal hat racks, hat-pegs, brackets and similar fixtures; castors with mountings of base metal; automatic door closers of base metal; and base metal parts thereof: Other mountings, fittings and similar articles, and parts thereof: 8302.41 Suitable for buildings:
Other:
Of iron or steel, of aluminum or of zinc

8302.42 Other, suitable for furniture:
8302.42.30 Of iron or steel, of aluminum or of zinc.

8302.50.0000 Hat-racks, hat pegs, brackets and similar fixtures, and parts thereof Other furniture and parts thereof:
Parts:
Other:
9403.90.80 Other
9403.90.8040 Of metal

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 nor legally binding, provide a commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

Heading 9403, HTSUS, the claimed applicable heading, is subject to Chapter 94 Note 1(d), which states that Chapter 94 does not cover “[p]arts of general use as defined in note 2 to section XV, of base metal (section XV), or similar goods of plastics (chapter 39), or safes of heading 8303.” Note 2(c) of Section XV states that “[t]hroughout the tariff schedule, the expression “parts of general use” means: Articles of heading 8301, 8302, 8308 or 8310 and frames and mirrors, of base metal, of heading 8306.” Emphasis original. Therefore, whether or not the merchandise is described in heading 9403, HTSUS, if it is described in heading 8302, HTSUS, it is precluded from classification in heading 9403, HTSUS. Accordingly, we will first determine whether the top tracks and hanging standards are described in heading 8302, HTSUS.

Heading 8302, HTSUS, provides for base metal mountings, fittings and similar articles. EN 83.02 states:

This heading covers general purpose classes of base metal accessory fittings and mountings, such as are used largely on furniture, doors, windows, coachwork, etc. Goods within such general classes remain in this heading even if they are designed for particular uses (e.g., door handles or hinges for automobiles). The heading does not, however, extend to goods forming an essential part of the structure of the article, such as window frames or swivel devices for revolving chairs.

Emphasis original.

Neither the HTSUS, nor the ENs provide a definition of the term "mountings". A tariff term that is not defined in the HTSUS or in the ENs is construed in accordance with its common and commercial meanings, which are presumed to be the same. Nippon Kogasku (USA) Inc. v. United States, 69 CCPA 89, 673 F. 2d 380 (1982). Common and commercial meaning may be determined by consulting dictionaries, lexicons, scientific authorities and other reliable sources. C.J. Tower & Sons v. United States, 69 CCPA 128, 673 F. 2d 1268 (1982). In HRL 966458, mountings were defined as "something serving as a backing, support, setting etc," (citing to Webster’s New World Dictionary of the American Language, 2nd, Edition p. 931 (1974)). Shelf supports in the form of standards are discussed in T. Philbin and S. Ettlinger, Everything Sold in Hardware Stores, 153-155 (1988). Generally, the standards are mounted onto the wall, and brackets on which the shelves are placed are attached to the standards. In this case, it is the top track which is mounted onto the wall and to which the standard is securely attached by hanging, using the lip and groove system. The top track functions as the standard by serving as an attachment to the wall, and the standard also serves as a standard by having the brackets attached to it. As stated in HRL 966458, the top tracks and standards are base metal articles that serve as a support, backing or a setting for the shelving system, and thus fit within the definition for mountings stated above.

The ENs to 83.02 state that the heading “covers general purpose classes of accessory fittings and mountings such as are used largely on furniture, doors, windows, coachwork, etc.” (emphasis not in original). The use of the term “accessory” narrows the terms “mountings” and “fittings.” The adjective "accessory" is defined as "[h]aving a secondary, supplementary, or subordinate function." American Heritage Dictionary, 2nd College Edition, p. 71 (1982). The top track and hanging standards are a structural part of the shelving system and cannot be said to be an accessory mounting to that system. However they are an accessory to the wall, enabling the wall to be used for mounting the shelving system.

Further, in order to meet the terms of heading 8302, HTSUS, the mountings must be suitable for “furniture, doors, staircases, windows, blinds, coachwork, saddlery, trunks, chests, caskets or the like.” In this case, the mountings attach to a wall; they are mounted thereto. Brackets are mounted onto the hanging standards, the top tracks and hanging standards are not mounted onto the shelving system. Therefore the top tracks and hanging standards are suitable for a wall, not furniture. CBP has taken the position that the phrase “or the like” is sufficiently broad to include “boats.” See HQ 088944, dated July 22, 1991, and HQ 950059, dated October 21, 1991, in which adjustable outboard motor brackets, and stainless steel fender racks/baskets and bracket/holders for boats, respectively, were classified in heading 8302, HTSUS. Under the doctrine of ejusdem generis, we find that a wall, upon which the top track and hanging standards are mounted, is of the same class or kind of items as those listed in the heading, such as doors, staircases or windows. A wall is a specific part of a structure for which mountings, fittings and similar articles can be suitable. A wall has been previously determined to be “or the like” in CBP rulings where items which are intended to be mounted to a wall have been classified in heading 8302, HTSUS. See, e.g. NY K82244, dated January 26, 2004 (bathroom safety supports); NY I88229, dated December 11, 2002 (bathroom safety supports); NY I88230, dated December 11, 2002 (shower safety supports); and NY E89661, dated December 1, 1999 (wall standards). The foregoing items were classified as being within the terms of the first clause of heading 8302, HTSUS.

As quoted above, EN 83.02 states that the heading does not extend to “goods forming an essential part of the structure of the article, such as window frames or swivel devices for revolving chairs.” Prior rulings pertaining to heading 8302, HTSUS, indicate that the term “article” used in the EN refers to the item for which the mounting, fitting or similar article is suitable, such as furniture, a window or a door. For example, in HQ 950059, supra, it was determined that boat fittings, which were to be mounted on a boat did not form an essential part of the boat, and therefore the fittings were not precluded from classification in heading 8302, HTSUS. The boat was the “article.” Similarly, in this case, the “article” is a wall, and the top tracks and hanging standards are accessories suitable for a wall, but do not form an essential part of the structure of a wall.

We find the top tracks and hanging standards are described in heading 8302, HTSUS, as mountings suitable for walls, and therefore in accordance with GRI 1, are classified in heading 8302, HTSUS.

In support of the position that the top tracks and hanging standards should be classified in heading 9403, HTSUS, you cite to HRL 958320, dated December 20, 1995 and HRL 956969, dated April 4, 1995, in which imported articles were classified within heading 9403, HTSUS, as parts of furniture. In those rulings the merchandise consisted of steel tiles to be used as a partition with modular office furniture, and other components of a modular work station, such as work surfaces and storage bins. The cited rulings are distinguishable from the facts before us in that the merchandise therein was not described under other provisions of the tariff schedule, as are the top tracks and hanging standards. As explained above, the top tracks and hanging standards consist of mountings for purposes of classification under the HTSUS. You also cited PD F84524, dated April 3, 2000, stating that a wall hanging unit consisting of two narrow wooden boards was classified as “parts of furniture.” In PD F84524, the item at issue was a complete wall hanging shelving unit, and it was in fact classified under subheading 9403.80.6040, HTSUS as “furniture,” as opposed to “parts of furniture.”

In further support of your position that the subject merchandise should be classified as parts of furniture, you cite to numerous rulings which held that certain imported units were classified as “furniture” under heading 9403, HTSUS. You cited PD F84524, supra, NY 854404, dated August 9, 1990, and NY I87283, dated October 23, 2002. You also take the position that in the event CBP affirms HQ 966458 and rules that “the subject merchandise is not properly classified as ‘[o]ther furniture and parts thereof: Parts: Other,’ under subheading 9403.90.80 of the HTSUS because the [subject] shelving system of which they are component parts, does not constitute ‘other shelved furniture,’ then Customs must delay the effective date of any such proposed ruling, publish the proposed ruling and notice of revocation of [NY 854404 and NY I87283], for comment, and then publish and delay the effective date of the final ruling, pursuant to 19 U.S.C. §1625(c)(1).”

First, in PD 854524, NY 854404, and NY I87283, based on the texts of the rulings, the merchandise at issue consisted of complete units of furniture, and they were classified as such. Therefore, those rulings are not determinative on the issue of whether the top tracks and hanging standards imported separately from the remaining portions of the shelving units are precluded from classification under heading 9403, HTSUS, as parts of general use, in accordance with Chapter 94 Note 1(d), by virtue of classification under heading 8302, HTSUS. Second, in HQ 966458, it was not ruled that the subject shelving system does not constitute “other shelved furniture,” but that the top tracks and hanging standards “are not described as parts of furniture under Heading 9403, HTSUS.” We clarify HQ 966458 herein that although the imported articles may be described in heading 9403, HTSUS, as parts of furniture, in accordance with Chapter 94 Note 1(d), as parts of general use, they are precluded from classification in Chapter 94, HTSUS. We do not need to make a determination specifically as to whether the units of which the top tracks and hanging standards form a part, are furniture, and are not subject to 19 U.S.C. §1625 in this case. HQ 966458 did not make a determination of whether the systems of which the top tracks and hanging standards form a part, are furniture.

In order to determine the proper classification at the subheading level, GRI 6 is applied. GRI 6 requires that the GRIs 1 through 5 be applied in order to determine classification at the subheading level.

In NYRL E89661, supra, wall standards were classified under subheading 8302.41.6080, HTSUS, which provides for “[o]ther mountings, fittings and similar articles, and parts thereof: suitable for buildings: other: of iron or steel, of aluminum or of zinc.” The top tracks and hanging standards at issue here, are mountings and if not expressly wall standards, they are similar to wall standards in that they perform in the same manner as wall standards. You assert in your submission that the “hanging standard” is a different article than a wall standard, stating that wall standards are a “general class of products interchangeable with a variety of different types of shelf brackets sourced from different manufacturers” whereas the hanging standard “is a proprietary product which can only be attached to the subject Elfa top track” and “only Elfa shelf brackets can be attached to the subject Elfa hanging standard.” To the contrary, in Everything Sold in Hardware Stores, supra, at p. 155, with regard to wall standards that are mounted directly onto the wall, it is stated that while the standards and brackets of different companies are sometimes interchangeable, usually they are not. In addition, even though the hanging standards work only with other items from the same patented system, EN 83.02 specifically states that the goods within the general classes remain in 83.02 even if they are designed for particular uses, and gives the example of door handles for automobiles. It is unlikely that automobile handles manufactured for a particular automobile could be used for installation on another automobile. You also state that the subject top tracks and hanging standards can only function in their intended manner when connected to the other shelving unit components, such as the brackets and shelves. This is true of all wall standards. They can only function as intended when items are mounted onto them. We conclude that the subject top tracks and hanging standards are substantially similar articles to traditional wall standards. As discussed above, the top tracks and hanging standards are suitable for walls, as opposed to furniture, therefore they are suitable for buildings, and are described in subheading 8302.41, HTSUS.

You take the position that if the top tracks and hanging standards are classified in heading 8302, HTSUS, they should be classified in subheading 8302.42, HTSUS which provides for “mountings, fittings and similar articles, suitable for furniture,” or in subheading 8302.50, HTSUS, which provides for “[h]at-racks, hat pegs, brackets and similar fixtures and parts thereof,” as brackets. We do not agree.

With regard to classification of the merchandise as “mountings suitable for furniture,” as stated above, the top tracks and hanging standards are not accessory items to be used with furniture. Instead, they form the structure of the furniture. Structural elements of furniture are not mountings and fittings suitable for furniture. As structural elements of the shelving unit, the top tracks and hanging standards are beyond the scope of being considered mountings or fittings suitable for furniture. The EN describes the following as “mountings, fittings and similar articles suitable for furniture”:

(1) Protective studs (with one or more points) for legs of furniture, etc.; metal decorative fittings; shelf adjusters for book-cases, etc.; fittings for cupboards, bedsteads, etc.; keyhole plates.
(2) Corner braces, reinforcing plates, angles, etc. (3) Catches (including ball spring catches), bolts, fasteners, latches, etc. (other than key-operated bolts of heading 83.01). (4) Hasps and staples for chests, etc.
(5) Handles and knobs, including those for locks or latches.

None of the above exemplars form an essential part of the structure of the furniture. This supports the position that the top tracks and hanging standards are beyond the scope of items that are to be considered as mountings and fittings suitable for furniture.

You also assert that “the shelving is designed to move with the tenant, just as any furniture is movable to the next location.” This assertion is not supported by the literature pertaining to the shelving systems. The literature emphasizes the fact that the shelving systems are customized for a particular space. Furthermore, the fact that it may be possible to remove the system from the wall and place it elsewhere, does not make it any less suitable for buildings. A door knocker is included as an exemplar of a mounting or fitting suitable for buildings among the exemplars in the ENs. A door knocker can also be removed and placed on a different door. This does not render it any less suitable for buildings.

With regard to classification of the merchandise as “brackets,” according to the literature submitted for HQ 966458, brackets are inserted into the hanging standards to support the shelves. The brackets serve a different function than the top track and standards. Generally, brackets can be mounted either on standards or directly onto a wall, however in either form, they serve as support for shelves. The top tracks and hanging standards are clearly not brackets, and serve as supports for brackets, not shelves.

You cite to HQ 962366, dated July 12, 1999 in support of classifying the merchandise in subheading 8302.50, HTSUS. However, in HQ 962366, the merchandise was described as “brackets”, and was shaped in a triangular form as is typical of brackets. The merchandise was significantly different from the top tracks and hanging standards at issue here. Similarly, the merchandise at issue in NY 88233 and NY DD 888232, both dated July 30, 1993, consisted of items in fact described as “brackets”. The merchandise at issue is not described as “brackets,” nor does it meet the definition provided in your submission of “projecting framework or arm designed to support weight” (citing the Merriam Webster Dictionary (1997)). The top track and hanging standard do not project from the wall any more than the typical wall standard. We also do not find that the top tracks and hanging standards are akin to the other items in subheading 8302.50, HTSUS which are hat-racks and hat pegs.

Finally, you also take the position that subheading 8302.50, HTSUS, is the only one-dash subheading which specifically describes the top tracks and hanging standards. We disagree that subheading 8302.50, HTSUS, describes the top tracks and hanging standards because the top tracks and hanging standards are not called brackets, do not function as brackets, and are not similar to brackets, as explained above.

In accordance with GRI 1, heading 8302, HTSUS, describes the top tracks and hanging standards as “[b]ase metal mountings, fittings and similar articles suitable for furniture, doors, staircases, windows, blinds, coachwork, saddlery, trunks, chests, caskets or the like.” In accordance with GRI 6 and 1, the top tracks and hanging standards are further described in subheading 8302.41.60, HTSUS, as “[o]ther mountings, fittings and similar articles, and parts thereof: [s]uitable for buildings: [o]ther: [o]f iron or steel, of aluminum or of zinc.” Accordingly, the holding in HQ 966458 is correct.

HOLDING:

The subject top tracks and hanging standards are classified in subheading 8302.41.6080, HTSUS, which provides for “Base metal mountings, fittings, and similar articles suitable for furniture, doors, staircases, windows, blinds, coachwork, saddlery, trunks, chests, caskets or the like: Other mountings, fittings, and similar articles, and parts thereof: Suitable for buildings: Other: of iron or steel, of aluminum or of zinc” with a column one, general duty rate of 3.9%. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at www.usitc.gov.

HQ 966458, dated June 19, 2003, is affirmed.

Sincerely,

Myles B. Harmon, Director
Commercial Rulings Division

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See also:

• Tariff No.: 8302.41.60 - Iron or steel, aluminum or zinc mountings, fittings & similar articles, nesoi, suitable for buildings, & base metal pts thereof
• Tariff No.: 8302.42.30 - Iron or steel, aluminum, or zinc mountings, fittings & similar articles, suitable for furniture, and base metal parts thereof
• Tariff No.: 8302.50.00 - Base metal hat-racks, hat pegs, brackets and similar fixtures, and base metal parts thereof
• Tariff No.: 9403.80.60 - Furniture (o/than seats & o/than of 9402) of materials nesoi
• Tariff No.: 9403.90.80 - Parts of furniture (o/than seats or o/than of 9402) nesoi