HQ H020141
July 30 2008
CLA-2 OT:RR:CTF:TCM H020141 JER
Amir Levin, President
Kaboost Corporation
40 Prince Street, Suite 5A
New York, NY 10012
RE: Request for Reconsideration of New York Ruling Letter N013800;
Classification of the Kaboost Chair Booster
Dear Mr. Levin:
This letter is in response to your request of October 22, 2007, for reconsideration of New York Ruling Letter (NY) N013800, dated July 26, 2007. In NY N013800, issued by the National Commodity Specialist Division, U.S. Customs and Border Protection (CBP), the subject “chair booster” was determined to be classified under subheading 3926.90.9980, of the Harmonized Tariff Schedule of the United States (HTSUS). We have reviewed NY N013800 and found it to be correct for the reasons set forth below.
FACTS:
The subject article, identified as the Kaboost Chair Booster (hereinafter chair booster) is described as being an alternative to traditional booster seats for children. The chair booster is a device which raises the height of an ordinary dining chair, kitchen or other chair. The merchandise consists of four spring-loaded arms which criss-cross to form an X-shaped foundation which is designed to attach to the bottom of four chair legs. The legs of a chair fit into the four spring-loaded arms which grip the chair legs and when activated raise the height of the chair from the bottom. The chair booster is marketed as a “portable chair booster” primarily used in the home and is sold in retail stores which feature merchandise for infants, toddlers and small children.
ISSUE:
Whether the Kaboost chair booster is classifiable as a household article of heading 3924, HTSUS or as a furniture accessory in heading 3926, HTSUS.
LAW AND ANALYSIS:
Classification under the HTSUSA 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 GRIs 2 through 6 may then be applied in order.
The HTSUS provisions under consideration are as follows:
3924 Tableware, kitchenware, other household articles and hygienic or toilet articles, of plastic:
3924.10 Tableware and kitchenware:
* * *
3924.90 Other:
* * *
3924.90.5600 Other
3926 Other articles of plastics and articles of other materials of headings 3901 to 3914:
* * *
3926.90 Other:
* * *
3926.90.99 Other
3926.90.9980 Other
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While not 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).
At issue is whether the subject chair booster is properly classifiable as a “household article” of heading 3924, HTSUS, which provides for, “tableware, kitchenware, other household articles and hygienic or toilet articles, of plastic.” NY N013800 classified the subject Kaboost chair booster in subheading 3926.90.9980, HTSUS, which provides for other articles of plastic.
In your request for reconsideration, you argue that the product at issue is classifiable as a household article in heading 3924, HTSUS because the chair booster is primarily used in the home. You further argue that because NY H87303, dated February 4, 2002, classified “bed raisers” in heading 3924 as other household articles, that the subject chair booster should receive similar tariff consideration. We disagree. In NY H87303, dated February 4, 2002 and in NY R02967, dated January 11, 2006, CBP classified “bed raisers” in heading 3924, HTSUS, as other household articles. These decisions determined that the bed raisers were dual use articles which in addition to raising the height of the bed also had the principal use of increasing storage space. Presently it is our view that bed raisers are not a household article of 3924, HTSUS, as these articles are not themselves storage containers capable of storing or holding items. We find that the bed raiser’s capacity to create storage space is ancillary to their primary function of raising the height of an article. These items like the Kaboost chair booster have as their primary function to increase the height of a piece of furniture. As a result, CBP intends to reconsider the decisions set forth in both NY H87303 and NY R02967.
Classification under heading 3924, HTSUS, is dependent upon the cannon of construction known as ejusdem generis, which means literally, “of the same class or kind.” “Where particular words of description are followed by general terms, the latter will be regarded as referring to things of a like class with those particularly described.” Nissho-Iwai American Corp. v. United States (Nissho), 10 CIT 154, 156 (1986). “As applicable to classification cases, ejusdem generis requires that the imported merchandise possess the essential characteristics or purposes that unite the articles enumerated eo nomine in order to be classified under the general terms.” Id. at 157. Accordingly, classification in heading 3924, HTSUS requires that the chair booster be ejusdem generis (of the same class or kind) as those household articles enumerated in the heading.
Unlike the bed raisers of NY H87303 and NY R02967, whose primary function is to increase the height of a bed, CBP has consistently found that storage containers or storage makers of plastic are within the purview of heading 3924, HTSUS, as other household articles. For instance, in Headquarters Ruling Letter (“HQ”) 089182, dated January 21, 1992, CBP classified a plastic “Earring Closet” designed to store earrings as a household article in heading 3924, HTSUS. Likewise, HQ H015358, dated November 2, 2007, classified a “plastic storage box” in heading 3924, HTSUS, because it stored items. In NY N012326, dated June 22, 2007, CBP classified a “plastic hardware storage case” in heading 3924, HTSUS, as a household article. Accordingly, storage containers, or articles which create storage space are within the scope of household articles of the heading, 3924, HTSUS. Unlike the storage containers discussed in HQ 089182 and HQ H015358, the subject chair booster does not store items or provide storage space. In your submission you state that the Kaboost chair booster is an alternative to a booster seat. The primary function of the Kaboost chair is to provide a means to raise the height of dinning chairs, kitchen or other chairs in order to accommodate the seating of small children. Increasing the height of furniture is not a function which is ejusdem generis with household articles of heading 3924, HTSUS.
The ENs to heading 3924 state that the heading covers four categories of merchandise: (A) Tableware (B) Kitchenware (C) Household articles and (D) Hygienic and toilet articles. Category (A) includes items closely associated with food and beverage consumption, dinning and table setting. Category (B) provides exemplars associated with foods, beverages, food preparation, food storage, etc. The examples provided in the ENs to heading 3924 under household articles list the following:
(C) Other household articles such as ash trays, hot water bottles, matchbox holders, dustbins, buckets, watering cans, food storage containers, curtains, drapes, table covers and fitted furniture dust covers (slipovers).
As the ENs to heading 3924 reflect, household articles are utilitarian, decorative, and receptacle in character, and are closely associated with household functions and household activities. Primarily, such articles are used to hold, contain, store and in some cases safeguard other items. For example, an ash tray may hold cigars and hot water bottles can contain water, while a food storage container can store food. Unlike the exemplars provided as household articles of heading 3924, HTSUS, the sole purpose of the chair booster is to increase the height of a chair. Increasing the height of a furniture item is not consistent with the uses contemplated by household articles of heading 3924, HTSUS.
Furthermore, the fact that an item is principally used in the home is not itself sufficient to warrant classification as a household article of heading 3924, HTSUS. For example, heading 3926, HTSUS, covers other articles of plastic, some of which are used within the home.
The ENs to heading 3926, HTSUS, provides, in pertinent part that:
This heading covers articles, not elsewhere specified or included, of plastics (as defined in Note 1 to the Chapter) or of other materials of headings 39.01 to 39.14.
They include:
(1) Articles of apparel and clothing accessories…e.g. aprons…
(2) Fittings for furniture, coachwork or the like.
(3) Statuettes and other ornamental articles.
* * *
(12) Various other articles such as fasteners for handbags. Corners for suit-cases, suspension hooks, protective cups and glides for placing under furniture, handles (of tools, knives, forks, etc.), beads, watch “glasses”, figures and letters, luggage label-holders.
As the ENs to heading 3926 demonstrate, statuettes and ornamental articles are articles classifiable in heading 3926, despite the fact that statuettes and ornamental articles are commonly located inside the home. Moreover, fittings for furniture and aprons made of plastic are almost exclusively used in and around the home yet are listed in the ENs to heading 3926 among other articles classifiable in heading 3926, HTSUS, rather than heading 3924, HTSUS. Similarly, the ENs to heading 3926 list protective cups and glides designed to be placed underneath furniture legs as articles classifiable in heading 3926, HTSUS. Protective cups and glides affixed to furniture legs are furniture accessories. Because furniture items are most often found inside the home, it follows that “protective cups and glides” are also primarily found inside the home. Yet, as the ENs to heading 3926, HTSUS, reflect, such items are classified in heading 3926, HTSUS, rather than as a household article. Accordingly, the primary location of an article standing alone does not determine the article’s primary function and hence does not make such articles classifiable as a household article of heading 3924, HTSUS.
Based on all the foregoing, we find that the subject chair booster is not classifiable as a household article but instead is classifiable as an article of plastic under heading 3926, HTSUS.
HOLDING:
By application of GRI 1, the subject chair booster is classifiable under heading 3926, HTSUS, specifically, under subheading 3926.90.9980, HTSUS, which provides for: “Other articles of plastics and articles of other materials of headings 3901 to 3914: Other: Other.” The 2008 column one, general rate of duty is 5.3% ad valorem.
Duty rates are provided for convenience only and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.
EFFECT ON OTHER RULINGS:
NY N013800, dated July 26, 2007, is hereby affirmed.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division