CLA-2-94:OT:RR:NC:N4:433
Derek Weaver
Corporate Compliance Manager
West Forwarding Services
17851 Jefferson Park Road, Suite 101
Middleburg Heights, OH 44130
RE: The tariff classification of a folding foam pad from China.
Dear Mr. Weaver:
In your letter dated May 16, 2016, on behalf of Hood Leather Goods, you requested a tariff classification ruling. Photographs were provided.
The merchandise concerned is a “folding foam convertible pad” which is intended to convert a billiard table to a flat table to be used for dining and entertainment purposes. The foam pad rests inside the pool table’s cushions providing a hard-top surface. The item is composed of 1.5 dense virgin Expanded Polystyrene (EPS) covered in a black spa laminate material cut snugly to fit over the foam pieces and glued into place using an ADH-scotch weld industrial adhesive.
In Bauerhin Technologies Limited v. United States, 19 CIT 1441, 914 F. Supp. 554 (1995), aff’d 110 F.3d 774 (Fed. Cir. 1997), the court pointed out that there are two distinct lines of cases, also known as tests, for defining the word “part” in the tariff. Starting with U.S. v. Willoughby Camera Stores, Inc., 21 CCPA 322, 324, (1933) T.D. 46075 (1933), cert. denied, 292 U.S. 640 (1934), this line of cases holds that a part of an article is something necessary to the completion of that article without which the article to which it is to be joined could not function as such article; restated: is the object an integral, constituent, or component part, without which the article itself could not function, nor operate. Another line of cases evolved from United States v. Antonio Pompeo, 43 CCPA 9, C.D. 1669 (1955), which held that a device may be a part of an article even though its use is optional and the article will function without it, if the device is dedicated solely for use upon the article, and, once installed, the article will not operate properly without it; restated: is the device being that of a part dedicated irrevocably upon such an article.
Because the “folding foam convertible pad” is not a part of the billiard table itself, it fails the U.S. v. Willoughby Camera Stores, Inc. test for being classified as a part of the billiard table. However, observation of the photographs indicates that the “folding foam convertible pad” is an integral, constituent, or component part for converting the billiard table into a flat table for purposes of dining and entertaining. As such, the “folding foam convertible pad” satisfies the United States v. Antonio Pompeo test for parts, in that the merchandise concerned is “dedicated irrevocably” to the flat table for without such insert the functionality of the flat table could not occur. Without the foam pad insert there could be no placing of food and drink upon, and other entertainment objects upon, thus no flat table could exists.
The “folding foam convertible pad” is composed of different components (textile and plastic) and is considered a composite. The ENs to the HTSUS, at GRI 3 (b) (VIII), state that “the factor which determines essential character will vary between different kinds of goods. It may for example, be determined by the nature of the materials or components, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.” When the essential character of a composite good can be determined, the whole product is classified as if it consisted only of the material or component that imparts the essential character to the composite good. It is our opinion that the plastic foam pieces, covered over in a laminate material, impart the essential character to the good, as it is the foam which provides the structure to the padded insert, thereby allowing for conversion of the billiard table into the flat table.
The applicable subheading for the “folding foam convertible pad” will be 9403.70.8015, Harmonized Tariff Schedule of the United States (HTSUS), which provides for “Other furniture and parts thereof: Furniture of plastics: Other; Other; household.” The rate of duty will be free.
The rate of duty will be free.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at https://hts.usitc.gov/current.
This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).
A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Neil H. Levy at [email protected].
Sincerely,
Steven A. Mack
Director
National Commodity Specialist Division