CLA-2 CO:R:C:F 957260 ALS
John M. Peterson, Esq.
Neville, Peterson and Williams
Counsellor at Law
80 Broad Street, Suite 3400
New York, NY 10004
RE: Reconsideration of New York Ruling Letter (NYRL) 897341
Concerning a Plastic Child Safety Gate
Dear Mr. Peterson:
This is response to your request (File No. 1414-01) for
reconsideration of the subject ruling. A sample of the article
was provided with your request and is being separately returned.
FACTS:
The article under consideration, labelled Supergate III, is
a safety gate intended to be used in the home. It is designed to
be used to partition areas of the house, primarily to keep small
children and animals confined to, or excluded from, certain
areas. The article consists of 2 molded plastic panels with an
open lattice pattern. The panels are connected to each other
through 3 interlocking slide tracks which are fastened with
adjustable hardware connectors. These connectors allow the
panels to slide apart and expand to cover a space between 26 and
46 inches. The article can be used by either pressure mounting
it against 2 surfaces, e.g., opposing walls or doorway, by
expanding the gate and then moving a handle on the middle track
to lock the gate in position. The article also feature rail
sockets which permit it to be positioned between a wall and a
wrought iron rail or two such rails. Hardware included with the
article permit it to be used as a swing gate. Adhesives, rail
sockets, mounting brackets, hardware and screws permit the gate
to be securely attached to a variety of surfaces. While counsel
suggest that the gate should be classified as furniture, the
subject ruling held that the gate would be more properly
classified as builders' ware.
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ISSUE:
What is the classification of the subject gate which is
designed to prevent passage by small children or animals between
two areas?
LAW AND ANALYSIS:
Classification of merchandise under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA) is governed by
the General Rules of Interpretation (GRI's) taken in order.
GRI 1 provides that the classification is determined first in
accordance with the terms of the headings and any relative
section and chapter notes. If GRI 1 fails to classify the goods
and if the headings and legal notes do not otherwise require, the
remaining GRI's are applied, taken in order.
We first considered whether the subject gate would be
furniture for tariff purposes. In this regard we noted Legal
Note 2 to Chapter 94, HTSUSA, which provides that:
2. 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.
We consulted the Explanatory Notes (EN) to the Harmonized
System which represents the opinion of the international
classification experts. It is noted that General Note (A) of the
EN of Chapter 94, states that the term "furniture" means:
(A) Any "movable" articles...which have the essential
characteristic that they are constructed for placing on
the floor or ground....
A provision, following General Note (B)(ii) of the EN
provides that:
Except for goods referred to in subparagraph (B) above, the
term "furniture" does not apply to articles used as
furniture but designed for placing on other furniture or
shelves or for hanging on walls or from the ceiling.
Counsel states that the article is movable and designed to
be placed on the floor or ground and is, therefore, furniture.
Reference is made to EN 94.03 and particularly to the reference
therein of fire screens and draught-screens. The articles are - 3 -
stated to be ejusdem generis with the instant article. We do not
agree with counsel's conclusion. We note that the exemplars in
the referenced EN are utilized by placing them on the floor and
that they are capable of being utilized while so situated. While
the Supergate III may be placed on the floor it would not be in a
free standing position but would be placed against another
surface to keep it upright. In testing the stability of the
gate, in a free standing position, to perform the function for
which it was designed, we noted that a slight touching was
sufficient to knock it over and prevent it from performing that
function. We further noted that the shipping container does not
indicate that it is to be placed on the floor and the pictures on
such container uniformly show that such is not the case.
Counsel indicates that the Supergate III would not be
builders' ware as provided for in heading 3925 because of its
portability and the fact it is not structural. Counsel further
indicates that such article should not be classified in the
provision for builders' ware since it is not sold in builder
supply houses but is routinely sold in juvenile furniture
outlets. While we do not disagree with counsel as to the
portability of the instant article and that it may be available
at a juvenile furniture outlet, that does not make it furniture.
We note that such outlets carry many non-furniture items, e.g.,
bedding, diaper pails, etc. We disagree with counsel's statement
that the gate is not structural. Although pressure mounted
safety gates are most often temporarily mounted and would be in
the nature of other household articles in heading 3924, HTSUSA,
the subject is distinguishable from those gates. The factor that
causes it to be distinguishable from other pressure gates is the
fact that it is designed so that it can be temporarily or
permanently installed in the desired area through the use of the
rail sockets, swing gate hardware, screws or adhesive. When so
installed the Supergate III is used in the same manner as any
other gate provided for in Legal Note 11(e) to Chapter 39,
HTSUSA. Further, when used as a swing gate it is very similar to
a door which can also be easily removed by taking out the hinge
pins. We believe that a plastic safety gate purchaser might opt
for the instant gate over other similar articles because of its
installation capabilities and have accordingly concluded that it
is similar to other items that may be installed in a house and
removed without difficulty.
Accordingly, we have concluded that the Supergate III is not
an article of furniture and that Legal Note 2(t) to Chapter 39 is
inapplicable.
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HOLDING:
A plastic infant child safety gate which is capable of being
pressure mounted against two opposing surfaces or otherwise
mounted with rails, sockets, hardware, screws and adhesives on a
flat surface or wrought iron rail or which can be hinge mounted,
is classifiable in subheading 3925.90.0000, HTSUSA. Articles
classified under this subheading, the provision for "Builders'
ware of plastics, not elsewhere specified or included: Other," is
subject to a general rate of duty of 5.3 percent ad valorem.
NYRL 897341 is affirmed as to the classification of the
subject article, the only matter for which reconsideration was
requested.
Sincerely,
John Durant, Director
Commercial Rulings Division