HQ W967680

September 6, 2005

CLA-2 RR:CTF:TCM 967680 IOR

CATEGORY: Classification

TARIFF NO.: 7323.93.0080; 7323.94.0080; 7323.99.9060

Samuel Zekser
President
Sobel Shipping Co., Inc.
170 Broadway
Suite 1501
New York, NY 10038-4148

RE: Steel step cans; PD D81838 revoked

Dear Mr. Zekser:

    In PD D81838, which the Port Director, Cleveland, Ohio, Customs and Border Protection (CBP), issued to you on September 11, 1998, on behalf of IHW, Inc. and Creative Technologies Corporation, steel pedal bins, or step cans, were found to be classifiable as other metal furniture, household, in subheading 9403.20.0010, Harmonized Tariff Schedule of the United States (HTSUS). PD D81838 is incorrect and no longer represents the position of CBP on the classification of this merchandise.

    Pursuant to section 625(c), Tariff Act of 1930, (19 U.S.C. 1625(c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed revocation of PD D81838 was published on June 29, 2005, in the Customs Bulletin, Volume 39, Number 27. Two comments were received in response to that notice, opposing the proposed revocation. The comments are discussed in the Law and Analysis section of this ruling.


FACTS:

    In PD D81838, the facts were stated as follows:

In the descriptive literature submitted with you [sic] letter, the furniture items are referred to as Pedal Bins, or Step Cans. The item is cylindrical in shape and comes in a variety of sizes. Each bin includes and is designed to hold or conceal a plastic or steel inner bucket. The Pedal Bins are made of either stainless steel, chrome plated steel or enameled steel and feature a foot pedal for opening and closing the lid. These items are floor standing.

ISSUE:

What is the classification of the steel step cans under the 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:

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………………………………..
7323.94.00                Of iron (other than cast iron) or steel,
enameled………………………………..………..
7323.99                Other:
                        Not coated or plated with precious
metal:
                            Other:
7323.99.90                            Other………………………

9403            Other furniture and parts thereof:
9403.20.00            Other metal furniture……………………………………..

    Section XV, note 1(k), which is applicable to Chapter 73, of the HTSUS, provides that Section XV does not cover articles of Chapter 94. In HQ 964352, dated September 11, 2000, there was set forth an analysis of whether floor standing steel combination ashtray/waste receptacles are articles of Chapter 94. It was concluded that floor standing steel waste receptacles are specifically excluded from heading 9403, HTSUS, and are not otherwise covered in Chapter 94, HTSUS. The analysis in HQ 964352 is incorporated herein.
    
    The steel step cans are described in heading 7323, HTSUS, as household articles of steel. 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 the official interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

    The ENs to heading 73.23, which covers table, kitchen or 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; it includes the same goods for use in hotels, restaurants, boarding-houses, hospitals, canteens, barracks, etc.” Goods specifically included in this heading are dustbins. 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, CBP stated, “[r]ecognizing 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.” Based on the foregoing we conclude that steel waste receptacles are included within the scope of heading 7323, HTSUS. In HQ 964352, supra, and HQ 964053, dated July 27, 2000, it was held that steel combination ashtray/waste receptacles intended to be used to collect trash, litter and waste in public areas of buildings are also classified in heading 7323, HTSUS, as their use as such is an extension of a housekeeping function. Therefore, the step cans at issue are classified in heading 7323, HTSUS, whether used in a household, public or business environment.

One commenter asserts that the steel step cans are substantially distinct articles from dustbins, and on that basis asserts that the step cans are described in heading 9403, HTSUS, and not in heading 7323, HTSUS. The commenter asserts that dustbins are not necessarily designed to be placed on the floor, are not typically made of heavy duty construction, do not have integrated lids to contain their contents, and lack an inner basket or bag that is removed to empty the contents, all unlike the steel step cans. The commenter provides no authority for the distinctions listed, and moreover, upon further research of the term dustbin, we conclude that the distinctions listed by the commenter have no merit. See e.g. www.answers.com/dustbin#WordNet. We continue to stand by the meaning attributed to the term “dustbin” in the preceding paragraph. The commenter has neither asserted nor established that the steel step can is distinct from a trash can, refuse can, garbage can, or cart.

This commenter further asserts that the step cans are specifically described under heading 9403, HTSUS, and Note 2 to Chapter 94, because the step cans are designed for placing on the floor or ground. The commenter asserts that articles for use in a house or office, and designed for placing on the floor, are prima facie classifiable in heading 9403, HTSUS. We disagree. Wastepaper baskets are designed for placing on the floor, and are for use in a home or office, and they are clearly excluded from heading 9403, HTSUS, according to the ENs. As we stated in HQ 964352, supra, Chapter 94 does not cover all “movable” articles constructed for placing on the floor. Because we do not agree that the step cans are classifiable in heading 9403, we do not reach GRI 3, as urged by the commenter. GRI 3 provides for the classification of goods that are prima facie classifiable under two or more headings.

    A second commenter takes the position that a step can composed of the inner liner and the outer can into which the liner is inserted are two separate articles, and that the inner liner is classified under heading 7323, HTSUS, and the outer can is classified under heading 9403, HTSUS, as furniture. The commenter argues that the sole function of the outer can, referring to one in which the bottom is not closed, but contains a crossbar to hold the liner, is to cover, protect, and provide easy accessibility to the trash bucket contained within. We disagree. Although the step can may be composed of two parts, the outer can, whether it holds a liner or simply a trash bag, is a trash can. The lid, and pedal function for the purposes of easy disposal of trash and covering the trash. The can is not simply a device to cover the real trash receptacle, but functions as a trash receptacle itself. The commenter also takes an alternative position, that the step can is a composite article, composed of a trash can under heading 7323, HTSUS, and furniture under heading 9403, HTSUS, and should be classified under GRI 3(c), under the heading occurring last in numerical order. The commenter cites NY F85897, dated April 18, 2000, which classified a laundry hamper composed of a metal frame and a canvas bag. In that case, unlike in the instant case, no one heading described the whole article, therefore it was classified by application of GRI 3.

    The step cans are specifically classified in subheading 7323.93.00, HTSUS, if they are of stainless steel, 7323.94.00, HTSUS, if they are enameled steel, and 7323.99.90, if they are chrome plated steel. The steel and plastic liners, imported with the step cans will be classified with the step cans.

HOLDING:

By application of GRI 1, the steel step cans are classified in heading 7323, HTSUS, as “[t]able, 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,” and the subheading depends upon the exterior surface of the article. Specifically, the step cans of stainless steel are classified in subheading 7323.93.0080, HTSUSA, as “[t]able, 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: Of stainless steel…Other,” with a column one, general duty rate of 2% ad valorem. The step cans of enameled steel are classified in subheading 7323.94.0080, HTSUSA, as “[t]able, 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: Of iron (other than cast iron) or steel, enameled…Other,” with a column one, general duty rate of 2.7% ad valorem. The step cans of chrome plated steel are classified in subheading 7323.99.9060, HTSUSA, as “[t]able, 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: Other: Not coated or plated with precious metal: Other: Other…Other,” with a column one, general duty rate of 3.4% ad valorem.

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/tata/hts/.

EFFECT ON OTHER RULINGS:

    PD D81838, dated September 11, 1998, is hereby REVOKED. In accordance with 19 U.S.C. §1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin. As this time frame is determined by statute, CBP cannot delay the effective date.

Sincerely,


Myles B. Harmon, Director
Commercial and Trade Facilitation Division