\OT:RR:CTF:CPMM H312460 KSG
Kevin Kevonian
Armen Living
28939 Avenue Williams
Valencia, CA 91355
RE: Reconsideration of NY N311960; tariff classification of a chair
Dear Mr. Kevonian:
This is in response to your request for reconsideration of New York Ruling Letter (NY) N311960 submitted by Armen Living, regarding the tariff classification of a “café chair” (item number 1393) in the Harmonized Tariff Schedule of the United States (HTSUS).
In NY N311960, dated June 9, 2020, CBP classified the chair in subheading 9401.71.0011, HTSUS, as an “other” household article.
The chair would be appropriate for use in households, offices, hotels, etc..
You argue that since you provide these chairs for commercial space, they should be classified in subheading 9401.71.0031, HTSUS, as other rather than as a household seat.
Additional U.S. Rule of Interpretation 1(a), HTSUS, provides, in relevant part, that: In the absence of special language or context which otherwise requires:… 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 Primal Lite, Inc. v. United States, 22 C.I.T. 697, 700 (Ct. Int'l Trade 1998), the CIT described one method to identify principal use provisions as follows: The use of the term "of a kind" is nothing more than a statement of the traditional standard for classifying importation[s] by their use, namely, that it need not necessarily be the actual use of the importation but is the use of the kind of merchandise to which the importation belongs. Subheadings 9403.30, HTSUS, 9403.40, HTSUS, and 9403.50, HTSUS, each use the term “of a kind.” As such, these subheadings are principal use provisions. However, there is no “of a kind” language in subheading 9401.71, HTSUS. Subheading 9401.71.00.0011 uses the word “household.”
In United States v. Carborundum Co., 536 F.2d 373, 377 (C.C.P.A. 1976) (Carborundum), the court stated that in order to determine whether an article is included in a particular class or kind of merchandise, the court must consider a variety of factors, including: (1) the general physical characteristics of the merchandise; (2) the channels, class or kind of trade in which the merchandise moves (where the merchandise is sold); (3) the expectation of the ultimate purchasers; (4) the environment of the sale (i.e., accompanying accessories and marketing); (5) usage, if any, in the same manner as merchandise which defines the class; (6) the economic practicality of so using the import; and (7) the recognition in the trade of this use.
In Dependable Packaging Solutions, Inc. v. United States, Slip Op. 2013-23 (Ct. Int’l Trade 2013), aff’d 757 F.3d 1374 (Fed. Cir. 2014), the Court applied the factors set forth in Carborundum to determine whether the principal use of a vase was for placement on a table, kitchen, toilet, office, indoor decoration or similar purposes rather than as packing containers of glass. The actual use of the vase was considered evidence of the principal use but was still only one of a number of factors.
Applying the Carborundum factors, we note that the physical characteristics of the chair would indicate that it is furniture for general use that could be used in a household or in a commercial office, in a hotel, etc., which comports with merchandise that defines the class of “other” It provides a place to sit with multiple possible uses. As to the other Carborundum factors, we have little information. A particular use of the article in a commercial office alone would not be determinative.
The general physical characteristics of the café chair do not suggest a particular use. As described in NY N311960, the “café chair” is “an armless, PU textile fabric, padded, upholstered seat and backrest affixed to a metal frame for the seating of a single individual. The seat dimensions are 17” in width, 22” in depth, 34” in height, and weighs 36 lbs.” The seat fabric will be available in different PU fabric colors.” There are no distinguishing features which would render the “café chair” more suitable for household or commercial use. With regard to channels within the trade, the chair is sold online. No commercial invoice, purchase order, packing list or other documentation is provided that is indicative of exclusive sales to ultimate purchasers being only commercial businesses. With regard to expectation of the ultimate purchaser, the “Café Collection” by Armen Living marketing and advertising provides for “…how furniture will fit in your home,” “…imagine how they will look in your home,” and “find something special to add to your home décor.” There is no documentation substantiating the chair’s principal use in a commercial setting over that of a household setting. With regard to environment of the sale, the chairs are sold individually or as a set with a table. A material breakdown or bill of materials were not provided, so the economic practicality is not known. Marketing and advertising literature provides for indoor seating in a commercial dining setting; however, this material is not indicative of its recognition and use in the trade. CBP is not persuaded that the classification of the chair in subheading 9401.71.0011, HTSUS, is incorrect.
Therefore, we affirm NY N311960.
Sincerely,
Allyson Mattanah for
Craig T. Clark, Director
Commercial and Trade Facilitation Division
cc: NIS Dharmendra Lilia, NCSD