HQ 089342: Shelf, rattan, bath; HRL 085753 modified

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 089342

                          June 18, 1991




CLA-2  CO:R:C:M  089342 DFC

CATEGORY:  Classification

TARIFF NO.: 4420.90.8000

Ms. Diana Leatherwood
Import Department
World Bazaar, Inc.
P.O. Drawer X
Atlanta, Georgia  30364

RE: Shelf, rattan, bath;  HRL 085753 modified

Dear Ms. Leatherwood:

     We have been asked to reconsider the result reached in
Headquarters Ruling Letter (HRL) 085753 dated February 21, 1990,
issued to you, concerning the tariff classification under the
Harmonized Tariff Schedule of the United States Annotated
(HTSUSA), of a rattan bath shelf produced in China.

FACTS:

     The merchandise which was the subject of HRL 085753 may
be described as a rattan bath unit with sides and supports made
of rattan peel wrapped around a rattan pole.  All of the design
weaving is made of rattan.  The shelves are made of thin plywood
boards with strips of peeled rattan used to hold the boards in
place.  The dimensions of the unit are approximately 6-3/4
inches in width by 17-1/4 inches in height by 18-3/4 inches in
length.  The shelf is intended for use as a bathroom accessory.

     This merchandise was classified under the provision for
other furniture of rattan in subheading 9403.80.3010, HTSUSA,
which was a modification of the result reached in HRL 084040
dated June 30, 1989, holding the rattan bath shelf to be
classified under subheading 4420.90.8000, HTSUSA, as wooden
articles of furniture not falling within Chapter 94, other,
other.

                               -2-

ISSUE:

     What is the scope of the term "other shelved furniture"?

LAW AND ANALYSIS:

     Classification of goods under the HTSUSA 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, and
provided such headings or notes do not otherwise require,
according to [the remaining GRI's taken in order]."  In other
words, classification is governed first by the terms of the
headings of the tariff and any relative section or chapter notes.

     Legal Note (LN) 2 to Chapter 94, HTSUSA, reads as follows:

     2.   The articles (other than parts) referred to in headings
          9401 to 9403 are to be classified in those headings
          only if they are designed for placing on the floor or
          ground.

          The following are, however, to be classified in the
          above mentioned headings even if they are designed to
          be hung, to be fixed to the wall or to stand one on
          the other:

          (a)  Cupboards, bookcases, other shelved furniture and
               unit furniture;

          (b)  Seats and beds.

     The Explanatory Notes (EN's) are the official interpretation
of the Harmonized System (HS) at the international level.
General EN's (A) and (B) to Chapter 94 read as follows:

          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, . . .

                               -3-

        (B)    The following:

               (i)  Cupboards, bookcases, other shelved furniture
                    and unit furniture, designed to be hung, to
                    be fixed to the wall or to stand one on the
                    other or side by side, for holding various
                    objects or articles (books, crockery, kitchen
                    utensils, glassware, linen, medicaments,
                    toilet articles, radio or television
                    receivers, ornaments, etc.) and separately
                    presented elements of unit furniture.

          LN 2 to Chapter 94, HTSUSA, set forth above, excludes
from headings 9401 to 9403 articles not designed to be placed
on the floor or ground, but allows certain exceptions to this
exclusion.  One of these exceptions, provided in subparagraph
(A) above, is "other shelved furniture."  Consequently, if the
bath shelf meets the definition of "other shelved furniture," it
is not barred from classification in heading 9403 by Note 2 to
Chapter 94, and should be classified as other furniture, of
rattan under subheading 9403.80.3010, HTSUSA.

     In previous rulings, Customs stated that the term "other
shelved furniture" is subject to at least two interpretations.
The first requires that an item which is in and of itself
"furniture," have the additional feature of being equipped,
fitted or otherwise furnished with shelves, to be "shelved
furniture."  The second interpretation of the term "shelved
furniture" includes furniture that is itself no more than a
shelf in the definition of "shelved furniture."  The exceptions
to the exclusion of LN 2 are intended to allow classification
under headings 9401 to 9403 of shelf-type furniture and modular
or unit-type furniture, all of which are intended to be supported
by walls or placed on other furniture rather than placed on the
floor or ground.  Customs has taken the position that the latter
interpretation of the term "shelved furniture," which includes
furniture which is itself no more than a shelf, is the correct
interpretation.

     It is now our view that our interpretation of the term
"other shelved furniture" is overly broad and is creating
problems in classification uniformity for articles which have
never been considered "furniture" by previous tariffs or by
the furniture trade.  Furthermore, it is our opinion that it
was not the intent of the drafters of the HS to classify small
furnishings or fixtures as "furniture" simply because a shelf
is incorporated in their construction.

                             -4-

     With respect to the intent of the drafters of the HS,
General EN to Chapter 94 at page 1574 makes the following
relevant comments:

          Except for the goods referred to in subparagraph (B)
     above, the term "furniture" does not apply to articles used
     as furniture but designed for placing on other furniture or
     shelves or for hanging on walls or from the ceiling.

          It therefore follows that this Chapter does not cover
     other wall fixtures such as coat, hat and similar racks, nor
     furnishings such as radiator screens.  Similarly, the
     Chapter excludes the following types of goods not designed
     for placing on the floor: small articles of cabinet-work and
     small furnishing goods of wood (heading 44.20), and office
     equipment. . . .

     Also, EN 2 to heading 44.20 reads as follows:

          The heading includes:

       (2)     Articles of wooden furniture other than  those of
               Chapter 94 (see the General Explanatory Note to
               that Chapter).  This heading therefore covers such
               goods as coat or hat racks, clothes brush hangers,
               letter trays for office use, ashtrays, pen-trays
               and ink stands.

     It is clear that the drafters of the HS intended to limit
the classification under Chapter 94 for certain articles which
are constructed not be placed on the floor or ground.  The
exceptions are listed.  It is our view that the list of
exceptions should not be interpreted so as to frustrate its
original purpose.

     As stated previously, the EN's and the Chapter Notes define
the term "furniture."  However, certain exceptions to the
meaning have been added.  Nevertheless, when studying the
exceptions listed in LN 2(a) and (b) to Chapter 94, we find the
enumerated articles to be specific and narrow in scope.  They
are exceptions, not the rule.  We will be very cautious in our
interpretation of the exceptions lest they become the rule.

     Customs has used the phrase "other shelved furniture" as a
term to be defined and interpreted.  The key word in the phrase
                            -5-

is "furniture."  The word "shelved" is describing the similarity
to the  enumerated articles, that is, cupboards and bookcases.
The similarity, however, does not end only in being "shelved."
The specific examples stated are substantial articles having the
essential characteristic that they are used to equip a home,
office, etc.  Furthermore, cupboards,and bookcases are articles
bought and sold by the furniture trade.  Most important, they are
not small furnishings, fixtures, or knickknacks.

     The EN to heading 94.03 at page 1578, which is where the
product in question may be classified, list numerous examples of
articles that are included within this heading as "furniture."
Some of the examples are shelved "furniture."  However, none of
the listed articles are similar to the product in issue.
This omission is indicative of the  intent of the drafters of
the HS.  These examples are convincing evidence that small
furnishings such as the article in issue are not "furniture"
notwithstanding the fact that a shelf may be present.

     Further confirmation that an article which is "itself no
more than a shelf" is not encompassed within the term "furniture"
is found in EN (c) to heading 94.03 at page 1579 which reads as
follows:

          This heading does not include:

     (c)   Builders' fittings (e.g., frames, doors and shelves)
           for cupboards, etc. to be built into walls (heading)
           44.18 if of wood.  (Emphasis added.)

     Based on the foregoing, it is now our position that the
prior interpretation of the phrase "other shelved furniture" is
not correct.  It is our opinion that LN 2(a) to Chapter 94,
HTSUSA, should be interpreted as  follows:

          Only articles which are "furniture" similar to
          cupboards and bookcases in that they are substantial
          articles having the essential characteristic that they
          are used to equip a home, office, etc. and incorporate
          shelves in their construction, whether or not they are
          designed to be hung or fixed to the wall, are
          classifiable as "furniture" under heading 9403, HTSUSA.

     In view of the change in the interpretation of the phrase
"other shelved furniture," it is now our position that rattan
bath shelf which was the subject of HRL 085753 dated February 21,
1990, is properly classifiable under subheading 4420.90.8000,
HTSUSA, as wooden articles of furniture not falling within
Chapter 94, other, other.

                              -6-

HOLDING:

     The rattan bath shelf which was the subject of HRL 085753
dated February 21, 1990, is dutiable under subheading
4420.90.8000, HTSUSA, at the rate of 5.1 percent ad valorem.

     This notice to you should be considered a modification of
HRL 085753 under 19 CFR 177.9(d).  It is not to be applied
retroactively to that ruling and will not therefore, affect past
transactions for the importation of your merchandise under that
ruling.  However, for the purposes of future transactions in
merchandise of this type, HRL 085753 will not be valid precedent.
We recognize that pending transactions may be adversely affected
by this modification, in that current contracts for importations
arriving at a port subsequent to this decision will be classified
pursuant to it.  If such a situation arises, you may, at your
discretion notify this office and apply for relief from the
binding effects of this decision as may be warranted by the
circumstances.

                         Sincerely,





                         John Durant, Director
                         Commercial Rulings Division



6cc AD NY Seaport
1cc Dist Dir Savannah
1cc Port Dir Atlanta
1cc Legal Reference
1cc Paul Garretto NY Seaport
1cc Larry Mushinske NY Seaport
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089342