CLA-2 OT:RR:CTF:TCM H025851 CkG
Mr. James Caffentzis
Fitch, King and Caffentzis
250 Moonachie Road, 5th Floor
Moonachie, NJ 07074
Re: Request for Reconsideration of New York Ruling Letter N022422; Classification of Portable Desktop
Dear Mr. Caffentzis,
This is in response to your request for reconsideration of New York Ruling Letter (“NY”) N022422, issued by Customs and Border Protection (CBP) on February 8, 2008, to AdSouth Marketing (AdSouth) of Encino, California and Boca Raton, Florida. In NY N022422, CBP classified the plastic portable desktop in heading 3926 of the Harmonized Tariff Schedule of the United States (HTSUS), as an article of plastic. In your request for reconsideration, you suggest that CBP classify the plastic portable desktop under heading 9403, HTSUS, as an article of furniture. In the alternative, you suggest that CBP classify the plastic portable desktop under heading 3924, HTSUS, as a household article.
FACTS:
The subject merchandise is a plastic portable desktop that provides a work surface that can be used on a sofa, a bed, a desk, or the floor. The portable desktop measures 21” x 12”. It has four 6” legs that fold up into the underside for storage or extend up to 13”. The portable desktop also has two sections that lift up independently and have notches to secure them at different angles. The larger section has a ribbed surface and a lip at the bottom to keep papers, a book or laptop from sliding off. The side incorporates four slots for storing universal serial bus (USB) devices. A small battery-operated reading lamp is built into this section. The smaller section on the right side has a built-in mouse pad surface and a compartment underneath for storing writing materials.
ISSUE:
Whether the portable desktop is classified under heading 3924, HTSUS, as a household article of plastic; heading 3926, HTSUS, as an “other” article of plastic, or heading 9403, HTSUS, as furniture.
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 GRIs 2 through 6 may then be applied in order.
The Harmonized Commodity Description and Coding System Explanatory
Notes (EN), constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the EN provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of the headings. It is CBP’s practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The HTSUS provisions under consideration are as follows:
3924: Tableware, kitchenware, other household articles and hygienic or
toilet articles, of plastics:
3924.90: Other:
3924.90.56 Other.
* * * *
3926: Other articles of plastics and articles of other materials of headings
3901 to 3914:
3926.10.00: Office or school supplies.
* * * *
9403: Other furniture and parts thereof:
9403.70: Furniture of plastics:
9403.70.80: Other.
* * * *
Note 2(x) to Chapter 39 specifically excludes “articles of Chapter 94 (for example, furniture, lamps and lighting fittings, illuminated signs, prefabricated buildings)”.
Note 2 to Chapter 94 states that “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 or ground.” The EN to heading 9403 states that “this heading covers furniture and parts thereof, not covered by the previous headings,” and further notes that heading 9403 includes furniture for private dwellings, hotels, etc.; offices; schools; churches; shops, stores, workshops; and laboratories or technical offices.
The General Notes to the EN to Chapter 39 state that “heading 39.26 is a residual heading which covers articles, not specified elsewhere or included, of plastics or of other materials of headings 39.01 to 39.14.”
EN 39.24 (C) states as follows: “This heading covers…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).
EN 39.26(5) states: “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…
(5) Paperweights, paper knives, blotting pads, pen rests, bookmarks, etc.”
* * * *
Furniture of heading 9403, HTSUS, must be designed for placement on the floor or ground under Note 2 to Chapter 94, HTSUS. Lap desks are generally designed for placement on one’s lap. Hence, CBP has consistently classified lap desks in heading 3926, HTSUS. See NY N032643, dated July 21, 2008; NY N016026, dated September 14, 2007; NY N013535, dated July 3, 2007; NY N004251, dated September 14, 2007. In your request for reconsideration, you argue that the portable desktop at issue can be distinguished from other lap desks due to the ability of its four legs to extend up to 13”, thereby transforming the product into furniture of heading 9403, HTSUS. However, based on the description on the retail box, the portable desktop was designed for use on a sofa, a bed or desk, or the floor. Therefore, like the laptop desks in the above rulings, the instant merchandise is not designed specifically for use on the floor and therefore does not meet the terms of the heading or Note 2 to Chapter 94.
You also cite to NY R00276, dated May 14, 2004, in support of classification in heading 9403, HTSUS. In that ruling, CBP classified a wooden cookbook holder in heading 4420, HTSUS, as a “wooden article of furniture not falling within Chapter 94.” This ruling is inapplicable to the merchandise at hand. The cookbook holder was not classified as an article of furniture of Chapter 94, partially because it did not typically rest on the floor. The same is the case for the instant article.
In the alternative, you request classification in heading 3924, HTSUS, as a household article. Headings 3924, HTSUS, and 3926, HTSUS, are principal use provisions and therefore subject to Additional U.S. Rule of Interpretation 1(a), HTSUS, which states that “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 goods belong, and the controlling use is the principal use.” In Essex Manufacturing, Inc. v. U.S., 2006 Ct. Intl. Trade LEXIS 1, *13, the Court of International Trade defined principal use as “the use ‘which exceeds any other single use’”. We relied upon the “Carborundum factors” to determine the principle use of the portable desktop and the particular class or kind of merchandise to which it belongs. See United States v. Carborundum Co., 536 F.2d 373, 377, 63 C.C.P.A. 98 (C.C.P.A. 1976). The “Carborundum factors”
include: (1) the general physical ;characteristics of the merchandise; (2) the expectation of the ultimate purchasers; (3) the channels, class or kind of trade in which the merchandise moves; (4) the environment of sale; (5) the use, if any, in the same manner as merchandise which defines the class; (6) the economic practicality of so using the import; (7) the recognition in the trade of this use. See Essex Manufacturing, Inc. v. U.S., 2006 Ct. Intl. Trade LEXIS at *14 (quoting U.S. v. Carborundum, 536 F.2d at 377). Briefly, we will address these factors in relation to the portable desktop.
The portable desktop provides a work surface for use with laptops, books, papers, etc. It thus more closely resembles the articles listed in Explanatory Note (5) to Heading 3926, HTSUS, than it resembles the “household articles” enumerated in EN(C) to heading 3924, HTSUS.
The ultimate purchaser would expect to use the work surface to do school and office work. This expectation is inconsistent with those purchasing 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). The use of the portable desktop at home does not preclude it from the particular class or kind of plastic office or school supplies. In fact, in NY 895868, dated March 30, 1994, CBP addressed the tariff classification of a file box used as a business organizer. Although the inquirer described the business organizer as being intended for home office use, CBP found that it belonged to the same class or kind of organizer principally used in offices. CBP classified the business organizer in heading 3926, HTSUS, which provides for other articles of plastics, office or school supplies. The instant laptop desk is similar in that it is akin to office or school supplies, but may be used at home.
You state that the channels of trade and environment of sale show that retail consumers rather than school administrators or office agents purchase the portable desktops. Neither heading 3926 nor the relevant section or chapter notes, however, require office or school supplies to be purchased by school administrators or office agents. In fact, both headings include articles purchased primarily by retail consumers.
There is economic practicality to using a plastic portable desktop as an office or school accessory. The portable desktop is cheaper and more accessible than a stationary desk for the average retail consumer. Lastly, we are unable to comment on whether the trade recognizes the portable desktop as furniture. On balance, we find that the portable desktop is of a class or kind commonly used as plastic office or school supplies based on the “Carborundum Factors”.
HOLDING:
By application of GRI 1 and Additional U.S. Rule of Interpretation 1(a), we find that the portable desktop should be classified in subheading 3926.10.00, HTSUS, which provides for: “Other articles of plastics and articles of other materials of headings 3901 to 3914: Office or school supplies.” The 2005 general column one rate of duty is 5.3%.
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 provided on World Wide Web at http://www.usitc.gov/tata/hts/.
EFFECT ON OTHER RULINGS:
NY N022422. dated February 8, 2008, is hereby affirmed.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division