H317208

 HQ H317208 October 20, 2022 OT:RR:CTF:CPMMA H317208 MAB CATEGORY: Classification TARIFF NO: 9403.90.8041; 9903.88.43 Center Director Machinery Center of Excellence and Expertise U.S. Customs and Border Protection 6601 NW 25th Street Miami, FL 33122 Attn: Jose L. Sacerio, Supervisory Import Specialist Re: Application for Further Review of Protest No. 5201-20-101898; tariff classification of steel shelves and posts used in adjustable shelving units Dear Port Director: The following is our decision regarding the Application for Further Review (“AFR”) of Protest Number 5201-20-101898, timely filed on July 28, 2020, by Sandler, Travis & Rosenberg, P.A., on behalf of Graduate Plastics Inc. (“Protestant”). This AFR concerns U.S. Customs and Border Protection’s (“CBP”) classification of steel shelves and posts used in adjustable shelving units. FACTS: The protested merchandise consists of steel shelves (both solid and wire) and posts used to assemble adjustable shelving units. The subject shelves and posts come in various sizes and may be combined with each other, or other parts (e.g., modular wire panels, casters, plastic storage bins, slanted shelving, plastic tray enclosures, and S-hooks), to produce a wide variety of shelving configurations. They are not prepackaged for sale as kits. Instead, each shelf and post model or part number is packaged separately, imported in bulk quantities, and placed into Protestant’s inventory, allowing for individual components to be pulled on an as-needed basis to build shelving units based upon the preferences and needs of its customers. The protested merchandise consists of one entry that was entered at the Port of Miami (“Port”) on November 29, 2019, and was liquidated on February 7, 2020, under subheading 8302.50.0000, HTSUSA (“Annotated”), as “[b]ase 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: Hat-racks, hat pegs, brackets and similar fixtures, and parts thereof.” At the time of entry, the protested merchandise was subject to Section 301 duties of 25 percent ad valorem under secondary tariff number 9903.88.03, HTSUS (2019), as the merchandise was classified under subheading 8302.50.00, HTSUS, and had a country of origin of China. See Notice of Modification of Section 301 Action: China’s Acts, Policies, and Practices Related to Technology Transfer, Intellectual Property, and Innovation, 83 Fed. Reg. 47,974 (September 21, 2018). The Protestant filed this Protest and AFR on July 28, 2020, asserting that the subject merchandise is properly classified in subheading 9403.90.8041, HTSUSA (2019), as “[o]ther furniture and parts thereof: Parts: Other: Other…Other: Of metal: Other.” On August 17, 2020, the Port informed the Protestant by email that it intended to deny the protest, stating that the subject merchandise was instead classified in subheading 9403.20.0075, HTSUSA (2019), as “[o]ther furniture and parts thereof: Other metal furniture…Other: Counters, lockers, racks, display cases, shelves, partitions and similar fixtures: Boltless or press-fit steel shelving units prepackaged for sale as described in statistical note 2 to this chapter.” On September 17, 2020, the Protestant responded by filing a “Supplemental Response to Protest,” again claiming classification in subheading 9403.90.8041, HTSUSA (2019). If CBP should disagree, the Protestant argues that the merchandise is alternatively classified in subheading 9403.20.0081, HTSUSA (2019), as “[o]ther furniture and parts thereof: Other metal furniture: Other: Counters, lockers, racks, display cases, shelves, partitions and similar fixtures: Other.” Under both classifications, the Protestant further asserts that the merchandise is eligible for an exemption from Section 301 duties under secondary tariff number 9903.88.43, HTSUS. ISSUE: Whether the subject steel shelves and posts used in adjustable shelving units are classified in subheading 9403.20.00, HTSUS, as “other metal furniture” or in subheading 9403.90.80, HTSUS, as “parts” of such furniture? LAW AND ANALYSIS: The protest was properly filed as a decision on classification under 19 U.S.C. § 1514(a)(2). The protest was timely filed within 180 days of liquidation of the entries. See 19 U.S.C. § 1514(c)(3). Further Review of Protest Number 5201-20-101898 was properly accorded to the Protestant pursuant to 19 C.F.R. § 174.24(a) and (b) because the decision against which the protest was filed is alleged to involve questions of law or fact which have not been decided on by CBP or by the Customs courts. Protestant further argues that the decision against which this protest is filed is alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee, specifically New York Ruling Letters (“NY”) N309157, dated February 4, 2020; NY N310238, dated March 16, 2020; and NY N269762, dated November 6, 2015. Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRI”). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. If the goods cannot be classified solely based on 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 2019 provisions under consideration are as follows: 9403 Other furniture and parts thereof: 9403.20.00 Other metal furniture Other: Counters, lockers, racks, display cases, shelves, partitions and similar fixtures: 9403.20.0075 Boltless or press-fit steel shelving units prepackaged for sale as described in statistical note 2 to this chapter… 9403.20.0081 Other… 9403.90 Parts: Other: 9403.90.80 Other… Other: Of metal: 9403.90.8041 Other… * * * * Note 2 to chapter 94 states, in pertinent part: 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. Statistical note 2 to chapter 94 states, in pertinent part: … the term “boltless or press-fit steel shelving units prepackaged for sale” refers to steel shelving in which the steel vertical and horizontal supports lock together to form the frame for the shelving unit and are assembled primarily without the use of nuts and bolts or screws. Boltless steel shelving includes rivet shelving, welded frame shelving, slot and tab shelving, and punched rivet (quasi-rivet) shelving but does not include wall-mounted shelving or wire shelving units in which a wire deck and wire horizontal supports are integrated into a single piece. The Explanatory Notes (“ENs”) to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings at the international level. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989). The EN to chapter 94 provides, in pertinent part: For the purposes of this Chapter, the term “furniture” means: 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… *** PARTS This Chapter only covers parts, w

The protest was properly filed as a decision on classification under 19 U.S.C. § 1514(a)(2). The protest was timely filed within 180 days of liquidation of the entries. See 19 U.S.C. § 1514(c)(3).Further Review of Protest Number 5201-20-101898 was properly accorded to the Protestant pursuant to 19 C.F.R. § 174.24(a) and (b) because the decision against which the protest was filed is alleged to involve questions of law or fact which have not been decided on by CBP or by the Customs courts. Protestant further argues that the decision against which this protest is filed is alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee, specifically New York Ruling Letters (“NY”) N309157, dated February 4, 2020; NY N310238, dated March 16, 2020; and NY N269762, dated November 6, 2015. Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRI”). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. If the goods cannot be classified solely based on 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 2019 provisions under consideration are as follows:9403 Other furniture and parts thereof:9403.20.00 Other metal furniture Other: Counters, lockers, racks, display cases, shelves, partitions and similar fixtures:9403.20.0075 Boltless or press-fit steel shelving units prepackaged for sale as described in statistical note 2 to this chapter…9403.20.0081 Other…9403.90 Parts: Other:9403.90.80 Other… Other: Of metal: 9403.90.8041 Other…* * * *Note 2 to chapter 94 states, in pertinent part: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.Statistical note 2 to chapter 94 states, in pertinent part:… the t