HQ 958911: NYRL 818256 affirmed; Bendable bookends; EN 83.04, 73.23

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 958911
May 8, 1996

CLA RR:TC:MM 958911 MMC

CATEGORY:  Classification

TARIFF NO.: 8304.00.00

Mr. Jack D. Mlawski
Galvin & Mlawski
440 Park Avenue South-9th Floor
New York, New York 10016-8067

RE: NYRL 818256 affirmed; Bendable bookends; EN 83.04, 73.23

Dear Mr. Mlawski:

     This is in reference to your letter on behalf of Zelco
Industries, Inc., dated February 12, 1996, requesting reconsideration
of New York Ruling Letter (NYRL) 818256 issued to you by the Area
Director of Customs, New York Seaport, on January 22, 1996,
concerning the classification of bendable bookends under the
Harmonized Tariff Schedule of the United States (HTSUS).  Copies of
literature describing the article were submitted for our examination. 


     In NYRL 818256 you were advised that the subject bookends were
classified under subheading 8304.00.00, HTSUS, which provides for
desk-top filing or card-index cabinets, paper trays, paper rests, pen
trays, office-stamp stands and similar office or desk equipment and
parts thereof, of base metal, other than office furniture of heading
9403.   You believe that the bookends could be considered a household
article of base metal classifiable under subheading 7323.99.90,
HTSUS, as table, kitchen or household articles of base metal.

FACTS:

     Bendable bookends consist of two 17«" rods of nickel plated
spring steel, capped with rubber tips which prevent marring or
scratching of the shelf or book.  When used, the bookends are bent
and placed either between one end of the shelf and the books to be
held or as a wedge between the books.   Unlike other bookends, the
subject article is not free standing.  The subheadings under
consideration are as follows:

     7323.99.90     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:
                    Other............................................................................3.4%


     8304.00.00     Desk-top filing or card-index cabinets, paper
                    trays, paper rests, pen trays, office-stampstands
                    and similar office or desk equipment and parts
                    thereof, of base metal, other than office
                    furniture of heading
                    9403...........................................5% 

ISSUE:

     Are the bookends classifiable as desk equipment or as other
household articles of base metal?

LAW AND ANALYSIS:

     The classification of merchandise under the HTSUS is governed by
the General Rules of Interpretation (GRI's).  GRI 1, HTSUS, states,
in part, that "for legal purposes, classification shall be determined
according to the terms of the headings and any relative section or
chapter notes...." 

     In an effort to determine if the subject article is  provided
for under each heading, the Harmonized Commodity Description and
Coding System Explanatory Notes (ENs) may be consulted.  The ENs,
although not dispositive nor legally binding, provide a commentary on
the scope of each heading of the HTSUS and are generally indicative
of the proper interpretation of these headings.  See T.D. 89-80, 54
Fed. Reg. 35127, 35128, (August 23, 1989).  En 83.04, pg. 1120-1121,
states in pertinent part, that:

     The heading covers filing cabinets, card-index cabinets, sorting
     boxes and similar office equipment used for the storage, filing
     or sorting of correspondence, index cards or other papers,
     provided the equipment is not designed to stand on the floor or
     is not otherwise covered by Note 2 to Chapter 94 (heading 94.03)
     (see the General Explanatory Note to Chapter 94). The heading
     also includes paper trays for sorting documents, paper rests for
     typists, desk racks and shelving, and desk equipment (such as
     book-ends, paperweights, ink-stands and ink-pots, pen trays,
     office-stamp stands and blotters).

     The heading does not, however, cover waste paper baskets which
     are classified according to the constituent metal (e.g., in
     heading 73.26).

EN 73.23 pg. 1035-1036, states in pertinent part, that this heading
covers:  

     A) TABLE, KITCHEN OR OTHER HOUSEHOLD ARTICLES AND PARTS THEREOF

     This group comprises a wide range of iron or steel articles, not
     more specifically covered by other headings of the Nomenclature,
     used for table, kitchen or other household purposes; it includes
     the same goods for use in hotels, restaurants, boarding-houses,
     hospitals, canteens, barracks, etc.

     These articles may be cast, or of iron or steel sheet, plate,
     hoop, strip, wire, wire grill, wire cloth, etc., and may be
     manufactured by any process (moulding, forging, punching,
     stamping, etc.). They may be fitted with lids, handles or other
     parts or accessories of other materials provided that they
     retain the character of iron or steel articles.

     The group includes:

     (1) Articles for kitchen use such as saucepans, steamers,
     pressure cookers, preserving pans, stew pans, casseroles, fish
     kettles; basins; frying pans, roasting or baking dishes and
     plates; gridirons, ovens not designed to incorporate heating
     elements; kettles; colanders; frying baskets; jelly or pastry
     moulds; water jugs; domestic milk cans; kitchen storage tins and
     canisters (bread bins, tea caddies, sugar tins, etc.); salad
     washers; kitchen type capacity measures; plate racks, funnels.

     (2) Articles for table use such as trays, dishes, plates, soup
     or vegetable dishes, sauce tureens; sugar basins, butter dishes;
     milk or cream jugs; hors-d'oeuvres dishes; coffee pots and
     percolators (but not including domestic percolators provided
     with a heat source (heading 73.21)), tea pots; cups, mugs,
     tumblers; egg-cups, finger bowls, bread or fruit dishes and
     baskets; tea pot or similar stands; tea-strainers, cruets;
     knife-rests; wine cooling buckets, etc., wine pouring cradles;
     serviette rings, table cloth clips.

     (3) Other household articles such as wash coppers and boilers;
     dustbins, buckets, coal scuttles and hods; watering-cans;
     ash-trays; hot water bottles; bottle baskets; movable
     boot-scrapers; stands for flat irons; baskets for laundry,
     fruit, vegetables, etc.; letter-boxes; clothes-hangers, shoe
     trees; luncheon boxes.

     The group also includes iron or steel parts of the articles
     listed above, such as lids, grips, handles, separating
     compartments for pressure cookers, etc.

     You suggest that subheading 8304.00.00, HTSUS, does not describe
the subject bookends because the phrase "desk-top" in subheading
8304.00.00, HTSUS, strictly limits the scope of the provision to base
metal equipment only used on a desk top.  We disagree. The subheading
language includes the phrase "and similar office or desk
equipment"...  This plain language clearly indicates the scope of the
provision goes beyond desk top equipment to include other office
equipment.  This interpretation is supported by exemplars such as
shelving and bookends, included in EN 83.04.  Moreover, such a narrow
interpretation would, in practice, transform this principle use
provision into an actual use provision.  Were Customs to implement
your suggestion, we would have to examine the actual use of every 
bookend imported into the United States to determine whether it was a
"desk top bookend" or a "other use" book end.  The lack of  detailed
specific evidence of what characteristics present at importation
would indicate the designation or the necessity for two separate
classes of bookends leads Customs to find that the creation of two
different bookend classes is not warranted. 

     According to the ENs, the subject article is described by both
headings.  Inasmuch as the subject article is prima facie described
in two different headings, it cannot be classified according to GRI
1.  When goods cannot be classified by applying GRI 1, and if the
headings and legal notes do not otherwise require, the remaining
GRI's are applied.  

     GRI 3 states, in pertinent part, that when goods are, prima
facie, classifiable under two or more headings, classification shall
be effected as follows:

     (a)  The heading which provides the most specific description
     shall be preferred to headings providing a more general
     description.  

 EN 83.04 indicates by name, bookends as articles described in
heading 8304.  Alternatively, EN 73.23 merely provides for all base
metal household  articles, which are not more specifically covered by
other headings.  Therefore,  subheading  8304.00.00, HTSUS, provides
the most specific description of the bookends.

HOLDING:

     The bookends are classifiable under subheading 8304.00.00,
HTSUS, as desk-top filing or card-index cabinets, paper trays, paper
rests, pen trays, office-stampstands and similar office or desk
equipment and parts thereof, of base metal, other than office
furniture of heading 9403, with a column one duty rate of  5% ad
valorem.   NYRL 818256 is affirmed.

       
                                   Sincerely,



                                   John Durant, Director
                                   Tariff Classification Appeals
Division