CLA-2 RR:CR:GC 960859 MMC
Mr. John M. Peterson
Neville, Peterson & Williams
80 Broad Street
34th Floor
New York, NY 10004
RE: Stationary Entertainer; NYRL A85618 affirmed
Dear Mr. Peterson:
This is in reference to your August 11, 1997, letter on
behalf of Graco Children's Products, Inc., requesting
reconsideration of New York Ruling Letter (NYRL) A85618, dated
July 29, 1996, classifying an article identified as a "Stationary
Entertainer" under subheading 9401.80.4045, of the Harmonized
Tariff Schedule of the United States (HTSUS), which provides for
"[s]eats (other than those of heading 9402), whether or not
convertible into beds, and parts
thereof: [o]ther seats: [o]ther: [o]ther." You are now
requesting reconsideration of this classification, claiming that
the Stationary Entertainer is classifiable as a toy.
FACTS:
The article is identified as a Stationary Entertainer. It
is designed to be placed on the floor and functions as a seat
restraint for babies. Its plastic components measure 25 x 25 x
19 inches and consist of a donut-shaped tray supported by three
tubular-shaped, height-adjustable legs which are attached to a
round base via rubber accordion-like braces. The center of the
donut-shaped tray has a component which swivels 360ยง. Attached
to the swiveling component is a padded, washable cotton seat.
Attached to the tray are eight different toys. The toys consist
of a phone, steering wheel, "squeaker," mirror, bead loop,
"clicker," teether and music button.
The Stationary Entertainer contemplates placing the baby in
the seat and allowing the baby's feet to touch the base. When
the baby's feet touch the base, he/she is able to swivel the
chair portion around the entire tray and push up and down so that
the tray component bounces. It appears from the enclosed
pictures that once placed in the seat, a baby is unable to free
him/herself from it.
ISSUE:
Whether the Stationary Entertainer is classifiable as a seat
or as a toy.
LAW AND ANALYSIS:
Classification 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 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.
Chapter 94 provides, in pertinent part, for: furniture;
bedding, mattresses, mattress supports, cushions and similar
stuffed furnishings. 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 HTSUS. See, T.D. 89-90, 54 Fed. Reg.
35127, 35128 (August 23, 1989).
The General ENs to Chapter 94, HTSUS, state, in pertinent
part, that:
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, cafes, 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.
(B) The following:
(i) * * *
(ii) Seats or beds designed to be hung or to
be fixed to the wall.
EN 94.01, states, in pertinent part, that:
Subject to the exclusions mentioned below, 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).
Armchairs, couches, settees, etc., remain in this
heading even if they are convertible into beds.
Based upon the above-cited ENs, it is our opinion that the
Stationary Entertainer is ejusdem generis with the listed
articles and therefore is described by heading 9401, HTSUS. Such
an opinion is based on the fact that the Stationary Entertainer
is constructed for placing on the floor or ground and is used,
mainly for a utilitarian purpose; to provide seated restraint for
a baby. This utilitarian purpose is demonstrated by the
article's design and advertisement. Quite simply, the article is
designed so that a baby, once placed in the seat is unable to
remove him/herself from it. Furthermore, the Stationary
Entertainer is advertized in a section of the J.C. Penney catalog
identified as "Spaces for Babies." This category includes baby
bungee seats and various gates, as well as playpens.
You have suggested that while the Stationary Entertainer may
meet the description of heading 9401, HTSUS, it is nonetheless
excluded from classification in this heading by operation of Note
1(l) to Chapter 94. Note 1(l) to Chapter 94 states that:
This Chapter does not cover:
(l) Toy furniture or toy lamps or lighting fittings
(heading No. 95.03), billiard tables or other furniture
specially constructed for games (heading No. 95.04),
furniture for conjuring tricks or decorations (other
than electric garlands) such as Chinese lanterns
(heading No. 95.05)
You believe the Stationary Entertainer meets the description of
heading 9503, HTSUS.
Heading 9503 provides for "[o]ther toys; reduced-size
("scale") models and similar recreational models, working or not;
puzzles of all kinds; parts and accessories thereof." The term
"toy" is not defined in the HTSUS. The ENs to Chapter 95 state,
in pertinent part, that "[t]his Chapter covers toys of all kinds
whether "designed for the amusement of children or adults."
Although not set forth as a definition of "toys," we have
interpreted the just-quoted passage from the ENs as equating
"toys" with articles "designed for the amusement of children or
adults," although we believe such design must be corroborated by
evidence of the articles' principal use.
When the classification of an article is determined with
reference to its principal use, Additional U.S. Rule of
Interpretation 1(a), HTSUS, provides that, in the absence of
special language or context which otherwise requires, such 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 goods belong, and the
controlling use is the principal use. In other words, the
article's principal use at the time of importation determines
whether it is classifiable within a particular class or kind.
While Additional U.S. Rule of Interpretation 1(a), HTSUS,
provides general criteria for discerning the principal use of an
article, it does not provide specific criteria for individual
tariff provisions. However, the U.S. Court of International
Trade (CIT) has provided factors, which are indicative but not
conclusive, to apply when determining whether merchandise falls
within a particular class or kind. They include: general
physical characteristics, the expectation of the ultimate
purchaser, channels of trade, environment of sale (accompanying
accessories, manner of advertisement and display), use in the
same manner as merchandise which defines the class, economic
practicality of so using the import, and recognition in the trade
of this use. United States v. Carborundum Company, 63 CCPA 98,
C.A.D. 1172, 536 F. 2d 373 (1976), cert. denied, 429 U.S. 979
(hereinafter Carborundum.)
You assert that the physical design of the article, its
ability to swivel and bounce together with its eight separately
attached toys all indicate that the Stationary Entertainer is
principally designed to amuse. In support of this contention you
cite to NYRLs 817987 dated January 25, 1996, which classified a
Nursery Rocking Boat as a toy, and 885896 dated June 4, 1996, and
801436 dated September 22, 1994, which both classified rocking
horses as toys. We are of the opinion that because none of the
rocking articles had any restraint element to their design, nor
functioned principally as seats, they are not substantially
similar to the Stationary Entertainer. Their only purpose was to
allow a child to voluntarily amuse themselves by rocking back and
forth at will. As such, the rulings classifying the rocking
horses and boat as toys are not controlling.
In addition, you cite Headquarters Ruling Letter (HRL)
958785, dated July 26, 1996, which classified an article
described as a "Lean On Me Activity Bolster." The article was
constructed from a solid piece of "U"- shaped plastic foam that
was covered with brightly printed fabric in a jungle motif. A
separate cushion encased in fabric was located in the middle of
the "U" on the bottom side of the article. Attached to the top
of the Lean On Me were five separate toys designed to amuse a
baby or young child. In addition to these five toys, the Lean On
Me incorporated a cup/bottler holder so that a baby's bottle (or
a child's drinking cup) could be held in place while the baby or
child was playing with the Lean On Me. Mesh storage pockets were
sewn to the sides of the Lean On Me for the storage of additional
toys. Customs classified the article as toy, holding that the
seating element was a secondary design element and that most
children would use the article either seated outside of the Lean
On Me or when they crawled into the Lean On Me head first.
Again, as with the rocking articles, a child could voluntarily
choose to sit or not sit in the Lean On Me. Such is not the case
with the Stationary Entertainer. Therefore, HRL 958785 is also
not controlling here.
Finally you state that "swiveling bases and bendable legs
are not ordinary features of "seats" or other furniture
articles." We disagree. Several articles listed in EN 94.01,
have bendable legs. Furthermore, our review of several retail
circulars indicates that other" baby" seats specifically high
chairs and car seats are now designed to have adjustable height
on their legs and positions for the seats.
In Ideal Toy Corp. v. United States, 78 Cust. Ct. 28 (1977),
the court stated that "when amusement and utility become locked
in controversy, the question becomes one of determining whether
amusement is incidental to the utilitarian purpose, or whether
the utility purpose is incidental to the amusement." Clearly,
elements of the Stationary Entertainer are designed to amuse a
child. However, Customs believes those design elements, the
swiveling and bouncing of the chair and the attached toys, are
secondary to the article's primary purpose, restraint. The
amusing elements of the Stationary Entertainer are there merely
to occupy a child so they will not realize the primary purpose of
the article, confinement. Evidentiary support of this primary
purpose is found in the the Stationary Entertainer's
advertising. It is advertized not in a toy section but in the
"Spaces for Babies" section of the J.C. Penney catalog. This
section does not include toys but other restraint articles such
as bungee seats, baby gates and playpens. For classification
of a similar articles see NYRLs 860301 dated February 13,
1991(classifying a "Kiddy Resin Stack Chair and Graco
Walker/Bouncer/Gym"), and NYRL A86517, dated August 19,
1996(classifying an article identified as a "Bungee Baby
Bouncer").
HOLDING:
The Stationary Entertainer is classifiable under subheading
9401.80.4045, HTSUS, which provides for "[s]eats (other than
those of heading 9402), whether or not convertible into beds, and
parts thereof: [o]ther seats: [o]ther: [o]ther, and has a 1998
column one duty rate of 0.5 percent ad valorem.
NYRL A85618 is affirmed.
Sincerely,
John Durant, Director
Commercial Rulings Division