OT:RR:CTF:TCM H193658 PTM
TARIFF NO: 9506.91.0030
Vicki White
Import Logistics Manager
Gaiam International
9107 Meridian Way
West Chester, OH 45069
Dear Ms. White,
We are writing in response to your request dated October 26, 2011, on behalf of Gaiam International (“Gaiam”), in which you request reconsideration of New York Ruling (NY) N144757 (Feb. 23, 2011) concerning the tariff classification of in the Harmonized Tariff Schedule of the United States (“HTSUS”), of a balance ball chair. You note that you received a prior CBP ruling, NY N009306 (Apr. 11, 2007) for a substantially similar balance ball chair packaged with an air pump, instructional digital video disc (“DVD”) and exercise bands. We have examined both rulings and find NY N009306 to be in error for the reasons set forth below.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625 (c)(1)), 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), a notice was published in the Customs Bulletin, Volume 49, No. 23, on June 10, 2015, proposing to revoke N009306, and any treatment accorded to substantially identical transactions. No comments were received in response to this notice.
FACTS:
In N144757, the merchandise was described as follows:
The product consists of an exercise balance ball and ergonomic desk chair frame. The frame portion includes these features: an adjustable narrow cushion back, adjustable legs and lockable castor wheels. The Polyvinyl Chloride (PVC) exercise ball fits securely into the metal frame, forming an ergonomic desk chair. The ball can be removed and used for exercise purposes, while the desk chair frame cannot function as a chair without the ball. The retail package will also include a plastic pump and an instructional DVD demonstrating six different exercise routines.
In NY N144757, U.S. Customs & Border Protection (“CBP”) classified the balance ball chair in 9506.91.0030, which provides for “Articles and equipment for general physical exercise, gymnastics, athletics, other sports (including table-tennis) or outdoor games, not specified or included elsewhere in this chapter; swimming pools and wading pools; parts and accessories thereof: Articles and equipment for general physical exercise, gymnastics or athletics; parts and accessories thereof…other.”
In N009306, we classified the balance ball chair packaged with an air pump, exercise cords and instructional workout DVD under 9401.80.4045 HTSUS, which provides for “Other seats, Of rubber or plastics, Other, Other.” The marketing material for the balance ball chair in N009306 shows the user of the chair performing exercises while seated on the chair. You state that the chair in N009306 was a slightly different model than the one evaluated in N144757. Further, you state that you discontinued the sale of the model evaluated in N144757 and now only sell the model evaluated in N009306.
The following are images of the balance ball chair and exercises or stretches that may be performed on the chair:
The ball can be removed from the chair to perform additional exercises:
The ball is designed to improve posture while sitting and improve core body strength. It can also be used for various exercises and stretches.
ISSUE:
What is the tariff classification of the balance ball chair?
LAW AND ANALYSIS:
Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification shall be determined 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 GRI may then be applied.
The HTSUS provisions at issue are as follows:
9401 Seats (other than those of heading 9402), whether or not convertible into beds, and parts thereof:
* * *
9506 Articles and equipment for general physical exercise, gymnastics, athletics, other sports (including table-tennis) or outdoor games, not specified or included elsewhere in this chapter; swimming pools and wading pools; parts and accessories thereof:
Both rulings at issue cover “retail sets,” the components of which are the “balance ball chairs” and the instructional DVD (NY N144757) and the air pump and exercise bands and instructional DVD (NY N009306). In both cases the “balance ball chair” imparts the set with its essential character, so this matter turns on the classification of the “balance ball chair.”
The Explanatory Notes (EN) 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. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
Explanatory Note 94.01 provides:
Subject to the exclusions mentioned below, this heading covers all seats (including those for vehicles, provided that they comply with the conditions prescribed in Note 2 to this Chapter), 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.
Thus, heading 9401 covers a wide variety of seats and chairs. The merchandise at issue, a balance ball chair, functions as either an ergonomic chair and as an exercise device. Because the exercise ball chair can serve as an ergonomic chair, it is prima facie classifiable under heading 9401.
Explanatory Note 95.06 provides:
This heading covers :
(A) Articles and equipment for general physical exercise, gymnastics or athletics, e.g., :
Trapeze bars and rings; horizontal and parallel bars; balance beams, vaulting horses; pommel horses; spring boards; climbing ropes and ladders; wall bars; Indian clubs; dumb bells and bar bells; medicine balls; rowing, cycling and other exercising apparatus; chest expanders; hand grips; starting blocks; hurdles; jumping stands and standards; vaulting poles; landing pit pads; javelins, discuses, throwing hammers and putting shots; punch balls (speed bags) and punch bags (punching bags); boxing or wrestling rings; assault course climbing walls.
(emphasis added).
Thus, heading 9506 includes various exercising apparatus. Regarding the exercise ball itself, prior CBP rulings that have classified inflatable exercise balls in heading 9506 HTSUS. In NY 156765 (Apr. 19, 2011) we found that an exercise system consisting of an inflatable exercise ball, adjustable exercise resistance tube, ankle toning cuff, a pump to inflate the ball and exercise DVD was properly classified in heading 9506 HTSUS. Similarly, in NY G84170 (Nov. 20, 2000), we classified an inflatable plastic exercise ball and air pump to be properly classified in heading 9506 HTSUS.
Because the balance ball is integral to the function of the balance ball chair, and because the user can perform exercises while sitting on the chair, the balance ball chair in its entirety is suitable for general physical exercise. The balance ball chair is “other exercising apparatus,” within the meaning of EN 95.06 as it is designed to be used for stretching and exercise and for strengthening the core while sitting. The exercise ball sits in the base of the chair and may be used for exercise either in the chair or while removed from the base. The promotional literature shows the user performing stretches and exercises while seated in the chair, or with the ball removed from the chair. The fact that the product includes an instructional DVD that shows the user how to perform exercise on the chair and also includes exercise bands lends additional support the conclusion that the balance ball chair is an exercise apparatus. Thus, the balance ball chair is prima facie classifiable under heading 9506 HTSUS.
Because the balance ball chair is prima facie classifiable under two separate headings, it must be classified pursuant to GRI 3, which states:
When, by application of rule 2(b) or for any other reason, 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. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.
GRI 3(a) is known as the "rule of relative specificity." See Orlando Food Corp. v. United States, 140 F.3d 1437, 1441 (Fed. Cir. 1998) (Orlando Food). Where articles can be classified under two HTSUS headings, under GRI 3(a) the classification "turns on which of these two provisions are more specific." Orlando Food, 140 F.3d at 1441. Courts undertaking the GRI 3(a) comparison "look to the provision with requirements that are more difficult to satisfy and that describe the article with the greatest degree of accuracy and certainty." Faus Group, Inc. v. United States, 581 F.3d 1369 (Fed. Cir. 2009) (quoting Orlando Food, 140 F.3d at 1441). And the general rule of customs jurisprudence is that, “in the absence of legislative intent to the contrary, a product described by both a use provision and an eo nominee provision is generally more specifically provided under the use provision.” Orlando Food, 140 F.3d at 1441.
However, that principle is not an ironclad rule of law, but merely “a convenient rule of thumb for resolving issues where the competing provisions are in balance.” See Carl Zeiss, Inc. v. United States, 195 F.3d 1375, 1380 (Fed. Cir. 1999) (citing Sports Graphics, Inc. v. United States, 24 F.3d 1390, 1394 (Fed. Cir. 1994)). The rule does not apply if the competing eo nominee provision is “obviously more specific than the ‘use’ provision.” See United States v. Simon Saw & Steel Co., 51 CCPA 33, 40-32 (Cust. Ct. 1964).
In this case, heading 9401 HTSUS is an eo nomine provision because it describes a commodity, in this case seats, by a specific name that is common in commerce. See, Nidec Corp. v. United States, 68 F.3d 1333, 1336 (Fed. Cir. 1995). By contrast, heading 9506 is a use provision inasmuch as it covers goods “for general physical exercise.” Applying the “convenient rule of thumb” that use provisions are more specific than eo nomine provisions, and because the HTSUS heading for “seats” in 9401 is not obviously more specific than the HTSUS heading for “exercise equipment” in 9506 HTSUS, we find heading 9506 provides the most specific description of the balance ball chair. Therefore, by operation of GRI 3(a), the exercise ball chair is properly classified in heading 9506 HTSUS.
HOLDING:
By application of GRI 3(a), the balance ball chair is properly classified in heading 9506 HTSUS, specifically 9506.91.0030, which provides for "Articles and equipment for general physical exercise, gymnastics, athletics, other sports (including table-tennis) or outdoor games, not specified or included elsewhere in this chapter; swimming pools and wading pools; parts and accessories thereof: Other: Articles and equipment for general physical exercise, gymnastics or athletics; parts and accessories thereof.”
The general column one rate of duty is 4.6% ad valorem. Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided online at www.usitc.gov/tata/hts/.
EFFECT ON OTHER RULINGS:
NY N144757 (Feb. 23, 2011) is AFFIRMED.
NY N009306 (Apr. 11, 2007) 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.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division