OT:RR:CTF:FTM H304297 JER
Mr. Eric Hansel
Regulatory Compliance Manager
C.H. Powell Company
478 Wando Park Blvd.
Mt. Pleasant, SC 29464
RE: Revocation of NY N270096; classification of floating pool loungers
Dear Mr. Hansel:
This is in response to your request, dated June 12, 2019, for reconsideration of New York Ruling Letter (“NY”) N270096, issued on November 24, 2014, to your client, Aqua Leisure Industries, concerning the classification of certain floating pool lounger merchandise under the Harmonized Tariff Schedule of the United States (“HTSUS”). In NY N270096, U.S. Customs and Border Protection (“CBP”) classified the imported floating pool lounger under heading 6307, HTSUS, in particular, under subheading 6307.90.9889, HTSUSA, as, “Other made up articles, including dresses: Other: Other, Other.”
In reaching our decision we have taken into consideration the decision in Swimways Corp. v. United States, 329 F. Supp. 3d 1313 (2018 Ct. Intl. Trade LEXIS 101), involving the classification of substantially similar floatation merchandise designed for use in swimming pools. For the reasons set forth in this ruling, we hereby revoke NY N270096.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. § 1625(c)(1)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. No. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed action was published on October 14, 2020, in Volume 54, Number 40, of the Customs Bulletin. One comment was received in support of this notice. Additionally, in the comment, it was asserted that NY E84859, dated August 5, 1999, involving the classification of therapeutic mattresses made of polyurethane coated nylon, should be modified in accordance with the rationale provided in the present decision. We have reviewed NY E84859 and find that the merchandise is not substantially similar to the merchandise in NY N270096 and the other rulings to be revoked or modified. As such, CBP will not modify or revoke NY E84859.
FACTS:
NY 270096 described the floating pool lounger as follows:
The 44-inch Monterey Pool Lounger is a “composite good” consisting of both PVC (which is a form of plastic) and polyester mesh textile fabric. According to figures you provided, the PVC represents 30% by weight and 16% by value while the polyester mesh makes up 70% by weight and 84% by value of the lounger. While the mesh fabric constitutes the most weight and value and provides the full body support of the user giving the user the ability to sit or recline, we also have to consider that the PVC air chambers give the pool lounger the ability to float.
In your June 12, 2019 request for reconsideration, you described the merchandise as the 44-inch Monterey Pool Lounger, which consists of two [inflatable] PVC air bladder chambers at each end with a polyester mesh textile fabric insert. You also provided a sample of the Monterey Pool Lounger which we have reviewed.
ISSUE:
Whether the subject merchandise is classifiable under heading 3926, HTSUS, as an article of plastic, or under heading 6307, HTSUS, as other made-up textile articles.
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.
The 2020 HTSUS provisions under consideration are as follows:
3926 Other articles of plastics and articles of other
materials of headings 3901 to 3914:
* * *
3926.90 Other:
* * *
3926.90.7500 Pneumatic mattresses and other inflatable articles, not elsewhere specified or included
6307 Other made up articles, including dress patterns:
* * *
6307.90 Other:
Other…
6307.90.98 Other…
* * *
The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding or 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).
The EN to 63.07 states, in relevant part, that:
This heading covers made up articles of any textile material which are not included more specifically in other headings of Section XI or elsewhere in the Nomenclature.
* * *
At issue is the classification of a pool lounger described as the Monterey pool lounger, which is designed for floatation in a swimming pool, lakes and other water ways. The Monterey pool lounger consists of two inflatable PVC air bladder chambers that keep the pool lounger afloat in the water and a polyester mesh textile fabric insert, which provides support for the user. The PVC bladders are best described by the terms of heading 3926, HTSUS, while the mesh textile insert is described by the terms of heading 6307, HTSUS. Inasmuch as the pool lounger presents with significant components made of separate materials described by two or more headings, both of which having different functions which contribute to the whole, the merchandise is considered a composite good. Hence, we must determine which if the two competing headings best describe the merchandise as a whole.
In NY N270096, CBP classified the Monterey pool lounger under heading 6307, HTSUS, finding that neither the PVC air bladders (3926, HTSUS) nor the textile mesh (6307, HTSUS) imparted the essential character of article in its entirety. Specifically, the decision in NY N270096 stated that: “While the mesh fabric constitutes the most weight and value and provides the full body support of the user giving the user the ability to sit or recline, we also have to consider that the PVC air chambers give the pool lounger the ability to float.” Likewise, CBP also noted that, “Without the inflatable PVC chambers, the lounger is not able to perform its main function as a pool or lake float.” See NY N270096. Accordingly, the decision in NY N270096 classified the Monterey pool lounger under the heading which occurred last in numerical order, heading 6307, HTSUS, in accordance with GRI 3(c).
You contend that the Monterey pool lounger should be classified under heading 3926, HTSUS, because, as you argue, it is the two plastic PVC air bladder components which impart the essential character of the overall pool lounger. You base your argument on the decision in Swimways Corp. v. United States; wherein the Court of International Trade (“CIT”) classified various models of “Spring Floats” and “Baby Spring Floats” designed for the flotation of users in swimming pools, lakes and similar bodies of water in heading 3926, HTSUS, as an article of plastic. You argue that the subject merchandise is substantially similar to the “Spring Floats” in the Swimways Corp. decision and that in light of the decision and legal analysis set forth by the CIT, CBP should reconsider its decision in NY N270096.
In Swimways Corp., the “Spring Floats” consisted of an inflatable, polyvinyl chloride (“PVC”) bladder that when inflated with air, provided the floatation capacity for the article. The center of the “Spring Float” was a woven elastomer textile mesh which supported the user during floatation. Swimways Corp., at 1317. In Swimways Corp. the CIT explained that although the merchandise consisted of component materials that were both significant, neither heading adequately described the article as a whole Swimways Corp., at 1321-1322. Accordingly, the CIT resolved to determine which component or material imparted the essential character of the “Spring Float” in accordance with GRI 3(b). Id., at 1322. The CIT noted that both the textile mesh and the PVC bladder contributed different significant functions; with the textile mesh providing support to its user and the PVC bladder providing the flotation characteristic. Id. Yet, the CIT concluded that the PVC bladder imparted the essential character of the article as a whole because the floatation function of the PVC bladder was essential to the functioning of the finished article. Id., at 1324. The CIT explained that because the PVC bladder enabled the article to float in water, it was the component material that allowed the “Spring Float” to perform its primary function, fundamental to its commercial identity as a “float.” Id. As such, the CIT determined that the “Spring Float” was classified in heading 3926, HTSUS, because it was the plastic component materials which imparted the essential character of the product.
Under our facts in this case, the textile mesh component provides support to the user; allowing them to sit and recline while afloat in the water and makes up 70% by weight and 84% by value of the pool lounger. The two PVC air bladders, once inflated with air, allow the pool lounger to perform its primary function, which is to float. In both instances, the headings which best describe the respective component material, each describe only a part of the component materials which together form the pool lounger as a whole. Because no single heading describes the subject pool lounger, this article cannot be classified in accordance with GRI 1. Instead, it is a composite good consisting of component materials which are classifiable under two separate headings which merit consideration. We note that when two or more competing headings are regarded as equally specific, classification is effected according to GRI 3(b).
Much like the “Spring Float” in Swimways Corp., it is the plastic PVC air bladders that contribute predominantly to the fundamental function and commercial identity of the subject Monterey pool lounger. While the textile mesh component allows the user to sit and recline while afloat, it is the floatation characteristic of the product which distinguishes this product from a chair or recliner. Absent the performance of the plastic PVC air bladders, the pool lounger could not perform its fundamental function, which is to float. Accordingly, we find that the plastic PVC air bladders impart the essential character of the product as a whole. Thus, the Monterey pool loungers are classified according to the plastic component material of which the PVC air bladders are made.
Additionally, pursuant to the decision in Swimways Corp. we are revoking previous CBP rulings involving the classification of similar inflatable pool floatation merchandise designed for use in swimming pools, lakes and other water ways, based upon the analysis herein. The rulings listed below incorrectly concluded that either the textile component imparted the essential character of the product or that the merchandise should be classified under the heading that occurred last in numerical order, in accordance with GRI 3(c). In keeping with the decision in Swimways Corp., it is now CBP’s position that plastic floatation component imparts the essential character of such products and therefore reliance on GRI 3(c) or classification of these products as a made up textile article, is incorrect. Moreover, we note that the underlying ruling of Swimways Corp., HQ 965956, dated January 22, 2003, is revoked by operation law. Similarly, a subsequent case involving similar inflatable pool floats also imported by Swimways, in HQ H145739, dated November 16, 2012, is also revoked by operation of law.
HOLDING:
By application of GRI 3(b), we find that the pool lounger is provided for in heading 3926, HTSUS, specifically, under subheading 3926.90.75, HTSUS, which provides for: “Other articles of plastics and articles of other materials of headings 3901 to 3914: Other: Pneumatic mattresses and other inflatable articles, not elsewhere specified or included.” The 2020 column one, general rate of duty is 4.2% ad valorem.
EFFECT ON OTHER RULINGS:
NY N270096, dated November 25, 2015, is hereby Revoked.
Pursuant to the decision in Swimways Corp., and the analysis herein, the following rulings are hereby Revoked: HQ H145739, dated November 16, 2012, HQ 966929, dated March 23, 2004, HQ 965956, dated January 22, 2003, NY N179233, dated August 26, 2011, NY N042676, dated November 11, 2008, and NY M80804, dated February 6, 2006.
Additionally, NY N069035, dated July 30, 2009, is hereby modified with respect to item number SA-3362.
In accordance with 19 U.S.C. § 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
For Craig T. Clark, Director
Commercial and Trade Facilitation Division