CLA-2 OT:RR:CTF:TCM H0100676 AS
Mr. Darby McGinn
Traffic/Logistics
North States Industries, Inc.
24138 Ellis Ave.
Siren, WI 54872
RE: The tariff classification of a plastic fence enclosure from China
Dear Mr. McGinn:
This is in response to your letter, dated February 25, 2009, which was received by Customs and Border Protection (CBP) on March 3, 2010, filed on behalf of North States Industries, Inc. wherein you requested the reconsideration of New York Ruling Letter (NY) N089884, dated February 3, 2010, pertaining to the classification of a plastic fence enclosure from China. In that ruling, the National Commodity Specialist Division (NCSD) classified articles identified as the “SuperYard XT (Item# 8666)” and “PetYard XT (Item# 8665)” in subheading 3924.90.5600, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for “Tableware, kitchenware, other household articles and hygienic or toilet articles, of plastics: Other: Other.” You only request reconsideration of the classification of the article “SuperYard XT (Item# 8666)”. You agree that the article “PetYard XT (Item# 8665)” is properly classified in subheading 3924.90.5600, HTSUSA.
We affirm NY N089884, dated February 3, 2010, which properly classified the “SuperYard XT (Item# 8666)”, because based on the product literature provided, the “SuperYard XT (Item# 8666)” is not furniture.
The “SuperYard XT (Item# 8666)” and “PetYard XT (Item# 8665)” are described in NY N089884 as follows:
The submitted illustrations depict items that are respectively identified as the SuperYard XT, Item#8666 and the PetYard XT, Item# 8665. These two items are identical, but the SuperYard is marketed as a play area for both young children and pets while the PetYard is only marketed as a play area for pets. Each of these two items is comprised of six interlocking plastic mesh panels that are assembled to form a six sided 26” high fence enclosure that sections off an area of 18.5 square feet. These items can be expanded by adding separately purchased panels. Each panel measures 30” long by 26” high.
You argue that the “SuperYard XT (Item# 8666)” should not be classified in subheading 3924.90.5600, HTSUSA, because it is marketed exclusively for children. You note that the product is primarily marketed for children, it equips a home, it is free standing, and it provides a safe enclosure for children to play in. You conclude that the “SuperYard XT (Item# 8666)” should be classified in heading 9403, HTSUS, as furniture, and specifically in subheading 9403.20, HTSUS (sic) as furniture of plastics. You also cite to NY J82926, dated April 7, 2003, NY 897945, dated June 16, 1994, NY A87781, dated October 2, 1996, and HQ 954180, dated July 21, 1993, all CBP rulings on different types of play yards.
Note 2(x) to Chapter 39 states, in relevant part, that this chapter does not cover “Articles of Chapter 94”. Therefore, our analysis begins with heading 9403, HTSUS. We note that the “SuperYard XT (Item# 8666)”, when assembled, resembles a fence. In fact, the individual panels of the “SuperYard XT (Item# 8666)”, resemble portable fencing. The General EN to Chapter 94 states that for the purposes of this Chapter, the term “furniture” means:
Any “movable” articles (not included under other more specific headings of the Nomenclature), which have the essential characteristic that they are constructed for placing on the floor or ground, and which are used, mainly with a utilitarian purpose, to equip private dwellings, hotels, theatres,… Similar articles (seats, chairs, etc.) for use in gardens, squares, promenades, etc. are also included in this category.
The following:
Cupboards, bookcases, other shelved furniture (including single shelves presented with supports for fixing them to the wall) and unit furniture, designed to be hung, to be fixed to the wall or to stand one on the other or side by side, for holding various objects or articles (books, crockery, kitchen utensils, glassware, linen, medicaments, toilet articles, radio or television receivers, ornaments, etc.) and separately presented elements of unit furniture.
Seats or beds designed to be hung or to be fixed to the wall.
Additionally, the EN 94.03 provides, in pertinent part, as follows:
This heading covers furniture and parts thereof, not covered by the previous headings. It includes furniture for general use (e.g., cupboards, show-cases, tables, tables, telephone stands, writing-desks, escritores, book-cases, and other shelved furniture (including single shelves presented with supports for fixing them to the wall), etc.), and also furniture for special uses.
The heading includes furnitures for:
Private dwellings, hotels, etc., such as: cabinets, linen chests, bread chests, log chests; chests of drawers, tallboys; pedestals, plant stands; dressing-tables; pedestal tables; wardrobes, linen presses; hall stands, umbrella stands; side-boards, dressers, cupboards; food-safes; bedside tables; beds (including wardrobe beds, camp-beds, folding beds, cots, etc.); needlework tables; foot-stools, fire screens; draught-screens; pedestal ashtrays; music cabinets, music stands or desks; play-pens; serving trolleys (whether or not fitted with a hot plate).
According to the product literature provided, the product is advertised, marketed and used mainly to provide a “safe” play area for children and pets and to provide “safe” sectioning off of Christmas trees, displays, etc. (emphasis added). As such, it is not a play-pen. A play-pen is used by children, not by pets. While the product at issue is certified by the Juvenile Products Manufacturer’s Association (JPMA), an organization that certifies the safety of juvenile products, it is also used for pets. CBP has previously determined that articles used for pets are not furniture within the meaning of the HTSUS and this is set forth in Headquarters Ruling Letter (HQ) 089558, dated July 2, 1991, wherein we stated that “furniture is for use by humans rather than by pets or animals...” Although the product is “movable” and is placed on the floor or ground, it is not furniture because it is not used to equip, or furnish, private dwellings, hotels, theatres, etc. It is also not similar to any of the examples of furniture in the relevant ENs cited supra. Therefore, the “SuperYard XT (Item# 8666)” is not described by heading 9403, HTSUS, as furniture. As such, it is not excluded by Note 2(x) to Chapter 39, HTSUS, and it is classified in heading 3924, HTSUS.
Finally, the products at issue in the CBP rulings that you cite in support of heading 9403, HTSUS, are not plastic panels resembling a fence used for children and pets like the “SuperYard XT (Item# 8666)” product at issue herein. Therefore, NY J82926, NY 897945, NY A87781, and HQ 954180 are not dispositive.
In view of the foregoing, we affirm NY N089884, dated February 3, 2010, which correctly classified the “SuperYard XT (Item# 8666)” in subheading 3924.90.5600, HTSUSA, which provides for “Tableware, kitchenware, other household articles and hygienic or toilet articles, of plastics: Other: Other.”
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division