CLA-2 OT:RR:CTF:TCM H082619 SKK/LWF
Damon V. Pike
The Pike Law Firm, P.C.
246 Sycamore St., Ste. 215
Decatur, Georgia 30030-3434
RE: Reconsideration of New York Ruling Letter N074173, dated March 25, 2009; tariff classification of infant/toddler stationary entertainers
Dear Mr. Pike:
This is in response to your October 23, 2009 letter, on behalf of Kids II, Inc. (“Kids II”), requesting reconsideration of New York Ruling Letter (“NY”) N074173, dated March 25, 2009, concerning the tariff classification under the Harmonized Tariff Schedule of the United States (HTSUS) of five styles of infant/toddler stationary entertainers, including one metal frame component part. In NY N074173, U.S. Customs and Border Protection (CBP) classified the stationary entertainers in heading 9401, HTSUS, which provides for “Seats (other than those of heading 9402), whether or not convertible into beds, and parts thereof.”
In your request for reconsideration of NY N074173, you assert that CBP’s classification of the subject stationary entertainers is erroneous because the articles are of a class or kind that is primarily used for entertainment purposes. You suggest that the merchandise should be classified in heading 9503, HTSUS, which provides for “Tricycles, scooters, pedal cars and similar wheeled toys; dolls’ carriages; dolls, other toys; reduced-scale (“scale”) models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof.”
In considering your request, we note that this ruling applies to four of the five articles at issue in NY N074173. The fifth article, described as the “Around We Go Activity Station” (Model nos. 6797 and 6938) will be the subject of a proposed modification of NY N074173, to be published in the Customs Bulletin in accordance with 19 U.S.C. § 1625.
FACTS:
The merchandise at issue in NY N074173 consisted of five styles of infant/toddler stationary entertainers. As noted above, this reconsideration ruling is limited in scope to four of the five items, which were described and classified in NY N074173 as follows:
Item 1: “Musical Motion Activity Jumper” (Model nos. 30872, 30917 and 6842). Model nos. 30872 and 30917 belong to the product line, "Baby Einstein." Model no. 6842 belongs to the product line "Bright Starts Pretty in Pink." The jumper is a stationary object with a metal frame that is designed to rest on the floor. A plastic molded piece is placed in the middle of the jumper and is attached to the metal frame with springs that are covered in protective padding. A circular opening is located in the center of the molded plastic into which a fabric sling-style seat is inserted; the seat has cut-outs through which an infant’s legs can protrude. When the infant is placed in the seat, the baby can swivel and interact with the various toys attached to the jumper. In NY N074173, CBP classified Item 1 in subheading 9401.71.00, HTSUS, which provides for “Seats (other than those of heading 9402), whether or not convertible into beds, and parts thereof: Other seats, with metal frames: Upholstered.”
Item 2: Metal frame kit for a “Musical Motion Activity Jumper” used in conjunction with the models identified in Item 1 above. The item is composed of several (bent) bars of cold rolled steel which are hallowed and shaped to accommodate different components of the jumper. The walls of the steel tubes are less than 1.65mm thick with a diameter of one inch. Portions of the tubes are covered with plastic elements or fabric padding. In NY N074173, CBP classified Item 2 in subheading 9401.90.50, HTSUS, which provides for “Seats (other than those of heading 9402), whether or not convertible into beds, and parts thereof: Parts: Other: Other.”
Item 3: “Bounce Bounce Baby Activity Zone” (Model no. 6837). This item is an entertainment center for infants constructed mainly of plastic. Unlike the jumper, it does not have a metal frame. The item has three plastic legs that provide stability for the activity zone, and has a circular opening in the middle into which a cloth sling-type seat is inserted. Below the seat is a plastic platform, known as a bounce pad. Several plastic toys are located around the seat to amuse an infant. In NY N074173, CBP classified Item 3, if made of reinforced or laminated plastic, in subheading 9401.80.20, HTSUS, which provides for “Seats (other than those of heading 9402), whether or not convertible into beds, and parts thereof: Other seats: Of rubber or plastics: Of reinforced or laminated plastics.” However, if Item 3 is not made of reinforced or laminated plastics, CBP concluded that Item 3 is classified in subheading 9401.80.40, HTSUS, which provides for “Seats (other than those of heading 9402), whether or not convertible into beds, and parts thereof: Other seats: Of rubber or plastics: Other.”
Item 4: “Bounce-a-Bout Activity Center” (Model nos. 6895 and 6724). Model nos. 6895 and 6724 are available under the product line, “Bright Starts.” The activity center is constructed mainly of plastic and does not have a metal frame. The item has a circular plastic base attached to which a bounce pad is centered. The seat has a circular opening in the middle into which a cloth sling-type seat is inserted. Various plastic toys are located around and above the seating area to amuse an infant. Included with the item are electronic elements that create noises when the infant interacts with them. In NY N074173, CBP classified Item 4, if made of reinforced or laminated plastic, in subheading 9401.80.20, HTSUS, which provides for “Seats (other than those of heading 9402), whether or not convertible into beds, and parts thereof: Other: Of rubber or plastics: Of reinforced or laminated plastics.” However, if Item 4 is not made of reinforced or laminated plastics, CBP concluded that Item 4 is classified in subheading 9401.80.40, HTSUS, which provides for “Seats (other than those of heading 9402), whether or not convertible into beds, and parts thereof: Other seats: Of rubber or plastics: Other.”
ISSUE:
Whether the infant/toddler stationary entertainers, identified as Items 1 through 4, are properly classified in heading 9401, HTSUS, as “seats (other than those of heading 9402), whether or not convertible into beds,” or in heading 9503, HTSUS, as “other toys”?
LAW AND ANALYSIS:
Classification of goods under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined according to the terms of the heading 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 heading and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.
The HTSUS provisions under consideration in this case are as follows:
9401: Seats (other than those of heading 9402), whether or not convertible into beds, and parts thereof:
* * * * *
9503: Tricycles, scooters, pedal cars and similar wheeled toys; dolls’ carriages; dolls, other toys; reduced-scale (“scale”) models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof:
* * * * *
Note 1(v) to Chapter 95 provides, in pertinent part, as follows:
This chapter does not cover:
…
(v) Tableware, kitchenware, toilet articles, carpets and other textile floor coverings, apparel, bed linen, toilet linen, kitchen linen, and similar articles having a utilitarian function (classified according to their constituent material).
* * * * *
In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The EN to Chapter 94, General Note (A), states 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, churches, schools, cafés, restaurants, laboratories, hospitals, dentists’ surgeries, etc., or ships, aircraft, railway coaches, motor vehicles, caravan-trailers or similar means of transport. (It should be noted that, for the purposes of this Chapter, articles are considered to be “movable” furniture even if they are designed for bolting, etc., to the floor, e.g., chairs for use on ships). Similar articles (seats, chairs, etc.) for use in gardens, squares, promenades, etc., are also included in this category.
EN 94.01 provides, inter alia, that:
…this heading covers all seats…, for example:
Lounge chairs, arm-chairs, folding chairs, deck chairs, infants’ high chairs and children’s seats designed to be hung on the back of other seats (including vehicle seats), grandfather chairs, benches, couches (including those with electrical heating), settees, sofas, ottomans and the like, stools (such as piano stools, draughtsmen’s stools, typists’ stools, and dual purpose stool-steps), seats which incorporate a sound system and are suitable for use with video game consoles and machines, television or satellite receivers, as well as with DVD, music CD, MP3 or video cassette players.
The EN to Chapter 95 provides, in pertinent part, as follows:
This Chapter covers toys of all kinds whether designed for the amusement of children or adults. It also includes equipment for indoor or outdoor games, appliances and apparatus for sports, gymnastics or athletics, certain requisites for fishing, hunting or shooting, and roundabouts and other fairground amusements.
Similarly, EN 95.03, paragraph (D), states, in pertinent part, that “other toys” classifiable within this heading are “intended essentially for the amusement of persons (children or adults).”
In NY N074173, CBP classified Items 1 through 4 within various subheadings of heading 9401, HTSUS, as seats and parts thereof. There, CBP held that the subject merchandise was “substantially similar” to merchandise at issue in Headquarters Ruling Letter (“HQ”) 960859, dated June 5, 1998, in which CBP affirmed the classification of a stationary entertainer as a seat of heading 9401, HTSUS. Similar to its analysis in HQ 960859, CBP concluded in NY N074173 that because the Items were of a class or kind principally used “for the restraint of an infant,” the articles’ amusement function was secondary to that of their utilitarian purpose.
In your request for reconsideration of NY N074173, you argue that the subject merchandise is properly classifiable as “other toys” of heading 9503, HTSUS, because the principal use of the articles is not the restraint function provided by the seat, but rather the amusement utility provided to a child while sitting in the merchandise. In further support of this classification, you state that the articles at issue are easily distinguishable from the stationary entertainer at issue in HQ 960859 because they are developed, marketed and sold as toys, as opposed to “restraint articles.” You also argue that even if CBP were to apply a GRI 3(b) essential character classification analysis to the products at issue, they are still classifiable as “other toys” under heading 9503, HTSUS, because they are designed, marketed and used primarily for amusement.
Heading 9503, HTSUS, provides, in pertinent part, for “other toys.” The term “toy” is not defined in the HTSUS. However, case law provides guidance on the types of articles that are properly classified in heading 9503, HTSUS. In Minnetonka Brands v. United States, 110 F. Supp. 2d 1020, 1026 (Ct. Int’l Trade 2000), the U.S. Court of International Trade (CIT) concluded that heading 9503, HTSUS, is a “principal use” provision within the meaning of Additional U.S. Rule of Interpretation 1(a), HTSUS. Additional U.S. Rule of Interpretation 1(a), HTSUS, provides that:
In the absence of special language or context which otherwise requires[,] a tariff classification controlled by use (other than actual use) is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported good belong, and the controlling using is the principal use.
Therefore, classification in heading 9503, HTSUS, is controlled by the principal use of the class or kind of goods to which the imported articles belong at or immediately prior to the date of the importation. Minnetonka Brands, 110 F. Supp. 2d at 1026.
In Lenox Collections v. United States, 20 Ct. Int’l Trade 194, 196 (1996), the CIT held that principal use is “the use which exceeds any other single use.” EN 95.03(D) also states that the principal use of a toy is “for the amusement of persons (children or adults),” and in Minnetonka Brands, the CIT determined that a toy must be designed and used principally for amusement and should not serve a utilitarian purpose. See Minnetonka Brands, 110 F. Supp. at 1026. Similarly, in Ideal Toy Corp. v. United States, 78 Cust. Ct. 28, 33 (1977), the U.S. Customs Court (predecessor to the CIT) held that when amusement and utility become locked in controversy, the question is whether the amusement is incidental to the utilitarian purpose, or vice versa. Thus, to be classified as a toy in heading 9503, HTSUS, an article must belong to a class or kind of goods which are principally used for amusement, and the article’s amusement characteristics must not be incidental to its utilitarian functions.
In order to determine the class or kind of good to which an article belongs, the Courts have instructed that CBP must examine all pertinent factors. Lenox Collections, 20 Ct. Int’l Trade at 196 (citing United States v. Carborundum Co., 536 F.2d 373, 377 (Fed. Cir. 1976)). These factors, commonly referred to as the “Carborundum Factors” are used to determine which goods are “commercially fungible with the imported goods.” Aromont, 671 F.3d at 1312 (quoting Primal Lite, 182 F.3d at 1365) (internal quotation marks omitted). The Carborundum Factors may include:
[U]se in the same manner as merchandise which defines the class; the general physical characteristics of the merchandise; the economic practicality of so using the import; the expectation of the ultimate purchasers; the channels of trade in which the merchandise moves; the environment of the sale, such as accompanying accessories and the manner in which the merchandise is advertised and displayed; and the recognition in the trade of this use. Id. (citing Carborundum, 536 F.2d at 377).
CBP has codified this principle in subsequent rulings. See, e.g., HQ W967570, supra; HQ H122957, dated October 9, 2012 (applying the Carborundum Factors to determine the principal use of tires for lawn and garden tractors). Consequently, CBP must determine whether pertinent factors indicate that the instant merchandise belongs to the class or kind of goods used principally as other toys of heading 9503, HTSUS.
In applying the Carborundum principal use criteria to the merchandise at issue, CBP is of the view that while Items 1 through 4 do possess some features intended to amuse a child, the Items are essentially designed as stable seating devices that parents purchase to provide a safe and entertaining way of restraining a young child. With respect to the physical characteristics of the merchandise, the presence of a number of small, amusing articles attached to the seat does not override the dominant frame and seat design features of the Items. The fact that parents use these items to seat a child in front of the television or allow a child to play with other toys or eat or drink while seated in the stationary entertainer is further evidence that these items are primarily used as articles of seating.
Notwithstanding the design and expectation of purchasers, CBP acknowledges that the instant articles are marketed differently than the stationary entertainer at issue in HQ 960859. Items 1 through 4 are marketed and sold to consumers as designed for entertaining and amusing children, while the stationary entertainer in HQ 960859 was marketed as a “restraint” item. However, the environment of sale and recognition in the trade of the use of substantial similar articles indicates that many retailers display these types of items with other types of infant/toddler seats and utilitarian devices, and not with toys. The current website of a major U.S. retailer of baby/toddler supplies lists “stationary entertainers” as a separate category of goods from “toys.” Similarly, the fact that marketing materials for the instant merchandise may not use the word “restraint” or “seat,” or may emphasize an Item’s amusement features, is not persuasive in rebutting evidence that the merchandise belongs to a class or kind of goods that differs from other stationary entertainers which are marketed and sold for their utilitarian functions.
The individual Carborundum factors indicate that the instant merchandise can be used for both amusement and utilitarian purposes. When considered in total, however, the Carborundum factors support a finding that the articles belong to a class of goods that is not principally used for amusement and, therefore, they cannot be classified as other toys of heading 9503, HTSUS. CBP reaffirms its conclusions in NY N074173 that Items 1 through 4 are substantially similar in design to the stationary entertainer considered in HQ 960859 because they are stationary objects featuring a sturdy metal or durable plastic frame to which are affixed various toys. Consistent with the description of “furniture” provided in the EN to Ch. 94, the instant articles are designed to rest on the floor and incorporate a seat which serves the utilitarian purpose of restraining a young child in a safe and comfortable manner. Inasmuch as the merchandise is described fully in heading 9401, HTSUS, the stationary entertainers are properly classified as seats.
HOLDING:
By application of GRI 1 and Note 1(v) to Chapter 95, the infant/toddler stationary entertainers identified in this ruling as Items 1 through 4 are provided for in heading 9401, HTSUS. Specifically, they are classifiable as follows:
Item 1: “Musical Motion Activity Jumper” (Model nos. 30872, 30917 and 6842) is classifiable is classifiable in subheading 9401.71.00, HTSUS, which provides for “Seats (other than those of heading 9402), whether or not convertible into beds, and parts thereof: Other seats, with metal frames: Upholstered.” The column one, general rate of duty under this provision in 2013 is free.
Item 2: “Musical Motion Activity Jumper” metal frame kit (used in conjunction with the models identified in Item 1 above) is classifiable in subheading 9401.90.50, HTSUS, which provides for “Seats (other than those of heading 9402), whether or not convertible into beds, and parts thereof: Parts: Other: Other.” The column one, general rate of duty under this provision in 2013 is free.
Item 3: “Bounce Bounce Baby Activity Zone” (Model no. 6837), is classifiable as a seat in heading 9401, HTSUS. Specifically, if made of reinforced or laminated plastic, Item 3 is classifiable under subheading 9401.80.20, HTSUS, which provides for “Seats (other than those of heading 9402), whether or not convertible into beds, and parts thereof: Other seats: Of rubber or plastics: Of reinforced or laminated plastics.” However, if Item 3 is not made of reinforced or laminated plastics, CBP concluded that Item 3 is classified in subheading 9401.80.40, HTSUS, which provides for “Seats (other than those of heading 9402), whether or not convertible into beds, and parts thereof: Other seats: Of rubber or plastics: Other.” The column one, general rate of duty under this provision in 2013 is free.
Item 4: “Bounce-a-Bout Activity Center” (model numbers 6895 and 6724) is classifiable as a seat in heading 9401, HTSUS. Specifically, if made of reinforced or laminated plastic, Item 4 is classifiable under subheading 9401.80.20, HTSUS, which provides for “Seats (other than those of heading 9402), whether or not convertible into beds, and parts thereof: Other: Of rubber or plastics: Of reinforced or laminated plastics.” However, if Item 4 is not made of reinforced or laminated plastics, CBP concluded that Item 4 is classified in subheading 9401.80.40, HTSUS, which provides for “Seats (other than those of heading 9402), whether or not convertible into beds, and parts thereof: Other seats: Of rubber or plastics: Other.” The column one, general rate of duty under this provision in 2013 is free.
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 located at www.usitc.gov.
EFFECT ON OTHER RULINGS:
NY N074173, dated March 25, 2009, is hereby AFFIRMED in part, with respect to Items 1, 2, 3 and 4.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division