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HQ 956018

July 8, 1994

CLA-2 CO:R:C:M 956018 DWS

CATEGORY: CLASSIFICATION

TARIFF NO.: 9403.80.60

Mr. John M. Peterson
Neville, Peterson & Williams
2300 N Street, N.W.
Washington, DC 20037

RE: Modification of NY 885035; Fold-N-Go Travel Crib and Play Yard; GRIs 2(a) and 3(b); Explanatory Notes 2(a)(V) and (VII), and 3(b)(VIII), (IX) and (X); Composite Good; Set; HQ 954180

Dear Mr. Peterson:

This is in response to your letter of March 22, 1994, on behalf of Century Products Inc., requesting reconsideration of NY 885035, dated May 4, 1993, which dealt with the classification of the "Fold-N-Go Travel Crib and Play Yard" under the Harmonized Tariff Schedule of the United States (HTSUS). Pursuant to section 625, Tariff Act of 1930 (19 U.S.C. 1625), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993) (hereinafter section 625), notice of the proposed modification of NY 885035 was published on June 1, 1994, in the CUSTOMS BULLETIN, Volume 28, Number 22.

FACTS:

The merchandise consists of the "Fold-N-Go Travel Crib and Play Yard", imported in a complete and unassembled condition. It is comprised of four plastic legs, four sides covered with nylon fabric, and a bottom vinyl pad. The merchandise is sturdy, has a lightweight design that sets up easily, and needs no tools for assembly. A protective pad, which is fitted with a cotton sheet, unwraps to become a soft cushion nap pad. The padded rails are soft for the protection of a baby. Mesh panels allow parents to check on the baby while it is playing.

ISSUES:

Whether the play yard, imported in a complete and unassembled condition, is classifiable as if imported in an assembled condition.

Whether the play yard is a composite good or goods put up in a set for retail sale.

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification is determined according to the terms of the headings and any relative section or chapter notes.

In NY 885035, the subject play yard was held to be classifiable as other household furniture of other materials under subheading 9403.80.60, HTSUS, as goods put up in a set for retail sale. Because it was held that the play yard was a set, its textile components were subject to textile quota requirements. If the play yard had been held to be a composite good, the textile quota requirements would not have applied to the textile components.

There is no dispute that the play yard is classifiable under subheading 9403.80.60, HTSUS. However, the manner in which this result is reached must be resolved.

First, because the play yard is imported in a complete and unassembled condition, we must determine whether it is to be classifiable as if imported in an assembled condition. GRI 2(a) states that:

[a]ny reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as entered, the incomplete or unfinished article has the essential character of the complete or finished article. It shall also include a reference to that article complete or finished (or falling to be classified as complete or finished by virtue of this rule), entered unassembled or disassembled.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes, although not dispositive, are to be used to determine the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). Explanatory Note 2(a)(V) (p. 2) states that:

[t]he second part of Rule 2(a) provides that complete or finished articles presented unassembled or disassembled are to be classified in the same heading as the assembled article. When goods are so presented, it is usually for reasons such as requirements or convenience of packing, handling or transport.

In part, Explanatory Note 2(a)(VII) (p. 2) states that:

[f]or the purposes of this Rule, "articles presented unassembled or disassembled" means articles the components of which are to be assembled either by means of simple fixing devices (screws, nuts, bolts, etc.) or by riveting or welding, for example, provided only simple assembly operations are involved.

We are satisfied that the play yard, imported in a complete and unassembled condition, imparts the essential character of an assembled play yard. Also, we find that the play yard is presented unassembled for reasons such as convenience of packing, handling, or transport, and that the play yard will be assembled by means of simple fixing devices.

We must now determine whether the play yard is a composite good or goods put up in a set for retail sale. GRI 3(b) states that:

[m]ixtures, 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.

In part, Explanatory Note 3(b)(IX) (p. 4) states that:

[f]or 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. . .

For classification purposes, it is our position that, based upon the above definition, the play yard constitutes a composite good. The play yard consists of separable components which are adapted one to the other and together form a whole which would not normally be offered for sale in separate parts. See HQ 954180, dated July 21, 1993.

Explanatory Note 3(b)(X) (p. 4) states that:

[f]or the purpose of this Rule, the term "goods put up in sets for retail sale" shall be taken to mean goods which:

(a) consist of at least two different articles which are, prima facie, classifiable in different headings . . .;

(b) consist of products or articles put up together to meet a particular need or carry out a specific activity; and

(c) are put up in a manner suitable for sale directly to users without repacking (e.g., in boxes or cases or on boards).

The play yard is not goods put up in a set for retail sale because it does not consist of separately identifiable articles classifiable in different headings under the HTSUS. The components of the play yard are not articles which could be sold separately and are put up to meet a specific activity. See the exemplars to Explanatory Note 3(b)(X). The play yard components are parts adapted one to another to form a play yard. The parts have little utility unless they are used together as a single article of commerce.

Explanatory Note 3(b)(VIII) (p. 4) states that:

[t]he 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.

It is our position that the essential character of the play yard is imparted by its vinyl components. The play yard has the appearance of being vinyl, with additions of other material.

Therefore, we find that the play yard is a composite good classifiable under subheading 9403.80.60, HTSUS.

HOLDING:

The "Fold-N-Go Travel Crib and Play Yard" is a composite good classifiable under subheading 9403.80.60, HTSUS, as other household furniture of other materials. Textile quota requirements do not apply to the textile components of the play yard. Also, the play yard, imported in a complete and unassembled condition, imparts the essential character of an assembled play yard.

NY 885035 is modified to reflect the reasoning in this ruling.

In accordance with section 625, this ruling will become effective 60 days after its publication in the CUSTOMS BULLETIN. Publication of rulings or decisions pursuant to section 625 does not constitute a change of practice or position in accordance with section 177.10(c)(1), Customs Regulations [19 CFR 177.10(c)(1)].

Sincerely,

John Durant, Director

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