OT:RR:CTF:CPMM H286422 KSG
Bryon Brown
Lifetime Products
Freeport Center Bldg., D-11
P.O. Box 160010
Clearfield, UT 84404
RE: Modification of NY N181156, dated September 15, 2011; tariff classification of kayak seat back
Dear Mr. Brown:
This letter is in reference to New York Ruling Letter (NY) N181156, dated September 15, 2011, regarding the classification of kayak seat backs in the Harmonized Tariff Schedule of the United States (HTSUS).
In NY N181156, U.S. Customs & Border Protection (CBP) classified kayak seat backs for children and for adults in subheading 3926.90.99, HTSUS, which provides for “Other articles of plastics and articles of other materials of headings 3901 to 3914: Other: Other.”
We have reviewed NY N181156 and determined that the ruling is in error. Accordingly, for the reasons set forth below, CBP is modifying NY N181156.
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 proposing to modify NY N181156 was published on September 25, 2019, in Volume 53, Number 34, of the Customs Bulletin. No comments were received in response to this Notice.
FACTS:
The imported articles are kayak seat backs for children and for adults, which function as a back rest and are an accessory to a kayak. The childrens’ kayak seat is composed of polyethylene plastic foam and has a polyester textile strap with a clip at each end to secure it to the kayak. The adult kayak seat back is made of ethylene vinyl acetate foam and also has the polyester textile strap with a clip at each end to secure it to the kayak.
ISSUE:
Whether the kayak seat backs are properly classified in heading 3926, HTSUS, as other articles of plastics or in heading 9404, HTSUS, as pillows, cushions, and similar furnishings.
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.
GRI 6 provides that for legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above Rules, on the understanding that only subheadings at the same level are comparable. For the purposes of this Rule the relative section and chapter notes also apply, unless the context otherwise requires.
The HTSUS subheadings under consideration are the following:
3926 Other articles of plastics and articles of other materials of headings 3901 to 3914:
3926.90 Other:
3926.90.99 Other
9404 Mattress supports; articles of bedding and similar furnishing (for example, mattresses, quilts, eiderdowns, cushions, pouffes and pillows) fitted with springs or stuffed or internally fitted with any material or of cellular rubber or plastics, whether or not covered:
9404.90 Other: Pillows, cushions and similar furnishings:
9404.90.20 Other
In understanding the language of the HTSUS, the Explanatory Notes (EN's) of the Harmonized Commodity Description and Coding System, constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the EN's 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, 35128 (August 23, 1989).
Chapter note 1 (a), chapter 94, HTSUS, provides that the chapter excludes pneumatic or water mattresses, pillows or cushions of chapter 39….
Chapter note 2(x), chapter 39, HTSUS, excludes articles of chapter 94 (for example, furniture, lamps and lighting fittings, illuminated signs, prefabricated buildings).
In Headquarters Ruling Letter (HQ) H265674, dated November 20, 2017, CBP considered whether airbeds were classified as “other articles of plastics” in heading 3926 or as “other furniture” in heading 9403. CBP examined the interplay of the chapter 39 note 2(x) and the chapter 94 note 1(a). CBP reconciled the two exclusionary notes by concluding that chapter note 1(a), chapter 94 applies to a narrow subset of goods- pneumatic or water mattresses, pillows or cushions. Essentially, the list of several very specific articles provides an exception to the general rule of classification under Chapter 94. In HQ H265674, airbeds were deemed to be pneumatic mattresses, which does fall within the narrow subset, and therefore, the airbeds were excluded from classification in chapter 94 and were classified in heading 3926, HTSUS.
When terms are not defined in the HTSUS or the EN's, they are construed in accordance with their common and commercial meanings, which are presumed to be the same. In determining the common meaning of a term in the tariff, courts may and do consult dictionaries, scientific authorities and other reliable sources of information….Nippon Kogaku (USA), Inc. v. U.S., 673 F.2d 380 (C.C.P.A. 1982). In Carl Zeiss, Inc. v. U.S., 195 F.3d 1375 (Fed. Cir. 1999), the Federal Circuit Court upheld the government’s reliance on a dictionary definition of a compound optical microscope absent contrary legislative intent and where the tariff provision was an eo nomine provision, not a use provision.
The HTSUS or EN's do not define a “pneumatic” mattress, pillow or cushion. In HQ H265674, CBP examined various dictionary definitions which defined “pneumatic” as filled with compressed air or gas. The phrase “pneumatic or water” in chapter note 1(a), chapter 94 applies to mattresses, pillows or cushions of chapter 39. The article in this case is clearly not a mattress so it would only be precluded from classification in Chapter 94, HTSUS if it is a pneumatic or water pillow of chapter 39 or a pneumatic or water cushion of chapter 39, HTSUS. In this case, the kayak seat backs are not filled with compressed air or gas or filled with water. Therefore, the kayak seat backs in this case are not pneumatic pillows or cushions. This is consistent with other CBP rulings dealing with kayak seats: NY I83878, dated July 26, 2002, which classified kayak seats in subheading 9404.90.20, HTSUS; NY H87797, dated February 28, 2002, which classified a kayak seat of nylon with a foam padding in subheading 9404.90.20, HTSUS; and NY N284050, dated March 17, 2017, which classified a kayak seat with a gel padding in subheading 9404.90.20, HTSUS. Based on the above, we conclude that the kayak seat backs are not precluded from classification in chapter 94, HTSUS, by chapter note 1(a).
Heading 9404 covers articles of bedding and similar furnishings. For instance in HQ 956997, dated March 14, 1995, CBP classified cushions for aircraft flight attendant seats, with a synthetic leather or fabric cover and urethane foam padding in subheading 9404.90.20, HTSUS. The cushions were not bedding but were considered "similar furnishings." We find that the children and adult kayak seat backs are like the flight attendant seats and would be considered "similar furnishings." Therefore, the kayak seats are properly classified in subheading 9404.90.20, HTSUS, consistent with the classification of kayak seats in NY I83878, NY H87797, and NY N284050.
HOLDING:
Pursuant to GRIs 1 and 6, the kayak seat backs are classified in subheading 9404.90.20, HTSUS. The column one, general rate of duty is 6% ad valorem.
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 for at www.usitc.gov.
EFFECT ON OTHER RULINGS:
NY N181156 is modified in accordance with the above analysis.
In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after publication in the CUSTOMS BULLETIN.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division