CLA-2 OT:RR:CTF:TCM H166336 HvB/SKK
Damon V. Pike
The Pike Law Firm, P.C.
246 Sycamore Street
Suite 215
Decatur, GA 30030-3434
RE: Modification of NY N074173; tariff classification of play table with detachable mobile seat; toys.
Dear Mr. Pike:
This is in response to your October 23, 2009 letter, on behalf of Kids II, Inc., requesting reconsideration of New York (NY) ruling letter N074173, dated March 25, 2009. At issue in that ruling was the classification of five styles of infant/toddler stationary entertainers, including one metal frame component part. In NY N074173, Customs and Border Protection (CBP) determined that the subject merchandise was classifiable as “seats (other than those of heading 9402) and parts thereof” under heading 9401, Harmonized Tariff Schedule of the United States (HTSUS).
In response to your request for reconsideration, we issued HQ H082619, dated July 31, 2013, which affirmed NY N074173, with respect to the classification of Items 1 through 4. In this letter, we address the classification of Item 5, described as the “Around We Go! Activity Station”, model numbers 6797 and 6938.
In your October 23, 2009 request, you assert that CBP’s classification of “Around We Go! Activity Station” in NY N074173 as “seats” in heading 9401, HTSUS, is erroneous as the stationary entertainer’s primary function is for entertainment and the merchandise is marketed as such. You suggest that the subject merchandise is properly classifiable under heading 9503, HTSUS, as “other toys; … parts and accessories thereof.”
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, notice of the proposed action was published in the Customs Bulletin, Vol. 49, No. 43, on October 28, 2015. No comments were received in response to the notice. CBP received one untimely comment in support this notice.
FACTS:
In NY N074173, the subject merchandise consisted of five styles of
infant/toddler stationary entertainers. We classified and described Item 5 as follows:
Item 5: “Around We Go! Activity Station” - model numbers 6797 and 6938 are available under the Bright Starts line. The activity station has two primary components: (1) a plastic pedestal table that features over twenty toys; and (2) a plastic seat on two legs with wheels that is attached to the table. The mobile seat allows an infant to rotate 360 degrees around the table. The seat has a circular opening in the middle into which a cloth sling-type seat is inserted. As the child grows, the seat is easily removable but has no independent use of its own. Once the seat is outgrown, the play table remains as the sole useable component. Included with the item are electronic elements that light up and project noises when the infant interacts with them. NY N074173 classified Item 5, if made of reinforced or laminated plastic, under subheading 9401.80.2010, HTSUS, which provides for “[S]eats (other than those of heading 9402), whether or not convertible into beds, and parts thereof: Other seats: Of rubber or plastic: Of reinforced or laminated plastics: Household.” If Item 5 is not made of reinforced or laminated plastics, the item was deemed classifiable under subheading 9401.80.4045, HTSUS, which provides for “[S]eats (other than those of heading 9402), whether or not convertible into beds, and parts thereof: Other seats: Of rubber or plastic: Other; Other.”
Below is a photo of the item:
ISSUE:
Whether the “Around We Go! Activity Station” is properly classifiable as a “Seat” in heading 9401, HTSUS, or as an “other toy” of heading 9503, HTSUS?
LAW AND ANALYSIS:
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes.
The 2016 HTSUS provisions under consideration are the following:
9401 Seats (other than those of heading 9402), whether or not convertible into beds, and parts thereof
9503 Tricycles, scooters, pedal cars and similar wheeled toys; dolls’ carriages; dolls, other toys; reduced-scale (“scale”) models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof
In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
EN 95.03 provides in relevant part:
(D) Other toys.
This group covers toys intended essentially for the amusement of persons (children or adults). However, toys which, on account of their design, shape or constituent material, are identifiable as intended exclusively for animals, e.g., pets, do not fall in this heading, but are classified in their own appropriate heading…
* * *
In your request for reconsideration of NY N074173, you argue that the subject merchandise is properly classifiable as “other toys” in heading 9503, HTSUS, because the principal use of the products is not its ability to restrain an infant, but instead to amuse the child. You argue that the articles at issue are may be distinguished from the stationary entertainer at issue in HQ 960859, dated June 5, 1998, in that the subject merchandise is are developed, marketed and sold as toys, as opposed to “restraint articles”.
CBP more recently addressed the issue of restraint versus amusement in classifying infant activity entertainers in HQ H082619, dated July 31, 2013, which concerned the classification of three plastic or metal infant jumpers and bouncers, that are also imported by the instant requestor, Kids’ Inc. In HQ H082619, we ruled that the items primarily serve a utilitarian purpose of restraining a child and thus were classifiable in heading 9401, HTSUS, as “seats”. However, the subject merchandise, Item 5 (“Around We Go! Activity Station”) is distinguishable from HQ H082619, primarily because its physical characteristics are different.
Item 5 has two primary components: (1) a plastic pedestal table that features over 20 built-in toys; and (2) a detachable wheeled mobile plastic seat on two legs which affixes to the table and allows the child to rotate 360 degrees around the table in order to play with the various toys. The seat has a circular opening in the middle into which a cloth sling-type seat is inserted. As the infant becomes a toddler, the mobile seat is easily removable and the article becomes solely a play table. The stationary activity centers in HQ H082619 consisted of seats, and not did not feature tables. Thus, unlike the seats in in HQ H082619, the seat in the instant article is on wheels which allows the infant to move around the table.
Inasmuch as the instant “Around We Go! Activity Station” qualifies as a composite good with separable components, it must be classified accordingly. If imported alone, the seat would be classified in heading 9401, HTSUS, which provides for “seats”. See HQ H082619, supra. The pedestal table features more than 20 interactive toys; these toys occupy the entire table. Thus, the table cannot be used as furniture and it does not provide any utilitarian value. See Minnetonka Brands v. United States, 24 C.I.T. 645 (Ct Int’l Trade 2000) in which the court held that an “object is only a toy if it is designed and used for amusement or play, rather than for practicality.” See also HQ H253885, dated March 23, 2015, in which we held that “boo-boo” gel packs were not classified as toys. Therefore, if the pedestal table was imported separately, it would be classified in heading 9503, HTSUS, as “other toys” because it can only be used to entertain a child and it is inherently amusing, due to the variety of light-up and noise-producing interactive toys. The activity center is therefore prima facie classifiable in more than one heading. In such a situation, the GRIs direct us to apply GRI 3 to a “composite good.”
GRI 3 provides, in pertinent part, as follows:
When, by application of rule 2(b) [not applicable in this case] or any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:
The heading which provides the most specific description shall be preferred to headings providing a more general description […]
Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.
…
The relevant ENs for GRI 3 provide:
(VIII) The factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.
…
(IX) For the purposes of this Rule, composite goods made up of different components shall be taken to mean not only those in which the components are attached to each other to form a practically inseparable whole but also those with separable components, provided these components are adapted one to the other and are mutually complementary and that together they form a whole which would not normally be offered for sale in separate parts.
In determining the essential character of the “Around We Go Activity Station,” CBP notes that the merchandise consists of a plastic chair that swivels around a pedestal table. When the child is restrained in the seat, she can “walk” 360 degrees around the toy table. The chair is detachable and may be removed once the child outgrows the manufacturer’s weight and height limits. Thus, the chair’s use is limited to the age and weight limits specified by the manufacturer (4 months and approximately 25 pounds). Unlike the chair, the table can be used alone, which is an attractive selling point to the ultimate purchaser, as parents get longer use out of the entertainer. Parents who reviewed the subject item on Walmart.com note this as a major selling point in their reviews of the item. The table features electronic elements that light up and project noises when the infant interacts with them. The table also accounts for a majority of the items bulk and weight. We also note that the instant item retails at a slightly higher price than infant stationary entertainers that consist of merely a bouncer without a table, such as the stationary entertainers that we classified in HQ H082619. Consequently, CBP concludes that the pedestal toy table predominates the Activity Center by its role in relation to the use of the goods, as well as by bulk, weight, value, and visual appearance. Consequently, we conclude that the pedestal toy table imparts the “Around We Go! Activity Center” with its essential character, pursuant to GRI 3(b). Accordingly, Item 5 is classifiable as an “other toy” of heading 9503, HTSUS.
HOLDING:
By application of GRI 3(b), Item 5, the “Around We Go! Activity Station” is classifiable under subheading 9503.00.0071, HTSUSA, which provides for “[T]ricycles, scooters, pedal cars and similar wheeled toys; dolls’ carriages; dolls, other toys; reduced-scale (“scale”) models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof… Other: Labeled for use by persons under 3 years of age.” The rate of duty will be free.
Duty rates are provided for your convenience and 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 N074173, dated March 25, 2009, is hereby partially modified with respect to Item 5, identified as “Around We Go! Activity Station”.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division