CLA-2 OT:RR:CTF:TCM H031398 JER
Mr. Troy D. Crago
Atico International USA, Inc.
501 South Andrews Avenue
Ft. Lauderdale, FL 33301
RE: Revocation of NY R02967; Bed Risers
Dear Mr. Crago:
On January 11, 2006, U.S. Customs and Border Protection (“CBP”) issued New York Ruling Letter (“NY”) R02967 to you on behalf of Atico International USA, Inc., classifying certain “bed risers” in heading 3924 of the Harmonized Tariff Schedule of the United States (“HTSUS”). After reviewing NY R02967, we have found that ruling to be in error. For the reasons set forth in this ruling, we are revoking NY R02967.
Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C. §1625(c)), 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, 2186 (1993), notice of the proposed revocation was published on October 30, 2008, in the Customs Bulletin, Volume 42, No. 45. No comments were received in response to this notice.
FACTS:
The subject merchandise is described as being comprised of four separate bed risers packaged for retail sale as a set, each of which are made of polypropylene plastic. Each bed riser measures 6 and 5/8 inches long, 6 and 5/8 inches in width and 6 inches in height.
ISSUE:
Whether the subject bed risers are classified under heading 3924, HTSUS, or under heading 3926, HTSUS.
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 GRIs 2 through 6 may then be applied in order.
Although the merchandise is packaged as a retail set, all four items are identical and are not shipped with additional components (e.g., batteries, screws or bolts). As such, the goods are not classifiable in two or more headings and are not deemed to be a set for tariff purposes, making classification according to GRI 3 inapplicable.
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. 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 (August 23, 1989).
CBP previously classified the subject bed risers in heading 3924, HTSUS, as other household articles because these items were believed to impart storage capacity. NY R02967 explained that the bed risers were used under the legs or wheels of a bed to add height and to create additional storage space underneath the bed. However, following a recent classification decision involving substantially similar merchandise, and upon further review of the terms of the heading and the ENs to heading 3924, HTSUS, we are now of the view that the bed risers are not provided for in heading 3924, HTSUS.
Presently, we find that bed risers are not a household article of 3924, HTSUS, as these articles are not themselves storage containers capable of storing or holding items. Instead, their primary function is to increase the height of a bed. Our research demonstrates that bed raisers (aka bed elevators or bed risers) are marketed, designed and sold as both bed raisers for purposes of increasing the height of a bed and for creating storage space underneath the bed. In some cases bed raisers serve the purpose of elevating the height of a bed to provide convenient use for persons with medical conditions or disabilities. Bed Raisers at www.abledata.com. In those instances where bed raisers are market and sold as items intended to elevate the height of beds, these items are in some cases, simultaneously marketed as being useful for creating additional storage space. However, standing alone, these items are incapable of adding storage space or storing items therein. See, Easy Risers Are Solution for Storage, at www.rehabmart.com; see also, And Add Storage Space! at www.mileskimball.com.
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 subject bed riser be ejusdem generis (of the same class or kind) as those household articles enumerated in the heading.
Unlike the bed risers of NY R02967, whose primary function is to increase the height of a bed, CBP has consistently found that storage containers or storage boxes, made 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, standing alone provide storage, are within the scope of household articles of the heading, 3924, HTSUS. Unlike the storage containers discussed in HQ 089182, NY N012326 and HQ H015358, the subject bed risers do not themselves store items nor have the independent capacity to provide storage. By contrast, the primary function of the subject bed risers is to provide a means to raise the height of a bed. 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, HTSUS, 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, increasing the height of a bed is not consistent with the uses contemplated by household articles of heading 3924, HTSUS.
In Totes, Inc. v. United States, 865 F. Supp. 867; 18 CIT 919 (1994), the Court found that a “trunk organizer” designed to store automotive necessities such as jumper cables, tire inflator, windshield washer fluid, etc., was ejusdem generis to merchandise designed to organize, store and protect various items. The Court noted that the essential characteristics and purpose of the exemplars of the heading are the very ones that the Courts had identified as having the capacity to organize, store, protect and carry various items.
The Court further explained that:
Insofar as the trunk organizers serve the purposes of organization, holding, storage and protection of articles, they fall within the class or kind of articles listed as exemplars in Heading 4202, especially jewelry boxes and cutlery cases that serve mainly to facilitate an organized separation, protection, storage or holding of jewelry or cutlery items. Totes at 925.
In keeping with the decision in Totes concerning the doctrine of ejusdem generis, the subject bed risers (aka bed elevator, bed raiser or bed lift) must possess the essential characteristics and purposes as do the holders and storage containers of heading 3924, HTSUS. Moreover, under Totes, the bed risers must be designed to hold, contain, store or safeguard various items. For the reasons set forth above, we find that they do not.
By contrast, the ENs to heading 3926 list protective cups and [furniture] glides designed to be placed underneath furniture legs as articles classifiable in heading 3926, HTSUS. Protective cups and glides affixed to furniture legs are similar to the subject merchandise in that they impact the character, performance and function of the furniture item to which they are affixed. The subject bed elevators, like the protective cups and glides, are affixed to the legs of a bed and function to affect the height of the bed. We find that, items such as the protective cups, furniture glides and the subject bed elevators work in conjunction with furniture items as goods classifiable in heading 3926, HTSUS, rather than performing an independent household function as do the matchbox holders, buckets, food storage containers and other articles enumerated in the ENs to heading 3924, HTSUS.
Based on the foregoing, we find that the bed riser’s capacity to create storage space is ancillary to their primary function of raising the height of a bed. As a result, CBP no longer finds classification of this merchandise under heading 3924, HTSUS, to be correct.
HOLDING:
By application of GRI 1, the subject bed riser is classifiable under heading 3926, HTSUS. Specifically, the item is classified 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: Other.” The 2008 column one, general rate of duty is 5.3% ad valorem.
EFFECT ON OTHER RULINGS:
NY R02967, dated January 11, 2006, 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