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HQ 957260




April 4, 1995

CLA-2 CO:R:C:F 957260 ALS

CATEGORY: CLASSIFICATION

TARIFF NO.: 3925.90.0000

John M. Peterson, Esq.
Neville, Peterson and Williams
Counsellor at Law
80 Broad Street, Suite 3400
New York, NY 10004

RE: Reconsideration of New York Ruling Letter (NYRL) 897341 Concerning a Plastic Child Safety Gate

Dear Mr. Peterson:

This is response to your request (File No. 1414-01) for reconsideration of the subject ruling. A sample of the article was provided with your request and is being separately returned.

FACTS:

The article under consideration, labelled Supergate III, is a safety gate intended to be used in the home. It is designed to be used to partition areas of the house, primarily to keep small children and animals confined to, or excluded from, certain areas. The article consists of 2 molded plastic panels with an open lattice pattern. The panels are connected to each other through 3 interlocking slide tracks which are fastened with adjustable hardware connectors. These connectors allow the panels to slide apart and expand to cover a space between 26 and 46 inches. The article can be used by either pressure mounting it against 2 surfaces, e.g., opposing walls or doorway, by expanding the gate and then moving a handle on the middle track to lock the gate in position. The article also feature rail sockets which permit it to be positioned between a wall and a wrought iron rail or two such rails. Hardware included with the article permit it to be used as a swing gate. Adhesives, rail sockets, mounting brackets, hardware and screws permit the gate to be securely attached to a variety of surfaces. While counsel suggest that the gate should be classified as furniture, the subject ruling held that the gate would be more properly classified as builders' ware.

ISSUE:

What is the classification of the subject gate which is designed to prevent passage by small children or animals between two areas?

LAW AND ANALYSIS:

Classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is governed by the General Rules of Interpretation (GRI's) taken in order. GRI 1 provides that the classification is determined first in accordance with the terms of the headings and any relative section and chapter notes. If GRI 1 fails to classify the goods and if the headings and legal notes do not otherwise require, the remaining GRI's are applied, taken in order.

We first considered whether the subject gate would be furniture for tariff purposes. In this regard we noted Legal Note 2 to Chapter 94, HTSUSA, which provides that:

2. The articles (other than parts) referred to in headings 9401 to 9403 are to be classified in those headings only if they are designed for placing on the floor.

We consulted the Explanatory Notes (EN) to the Harmonized System which represents the opinion of the international classification experts. It is noted that General Note (A) of the EN of Chapter 94, states that the term "furniture" means:

(A) Any "movable" articles...which have the essential characteristic that they are constructed for placing on the floor or ground....

A provision, following General Note (B)(ii) of the EN provides that:

Except for goods referred to in subparagraph (B) above, the term "furniture" does not apply to articles used as furniture but designed for placing on other furniture or shelves or for hanging on walls or from the ceiling.

Counsel states that the article is movable and designed to be placed on the floor or ground and is, therefore, furniture. Reference is made to EN 94.03 and particularly to the reference therein of fire screens and draught-screens. The articles are - 3 -
stated to be ejusdem generis with the instant article. We do not agree with counsel's conclusion. We note that the exemplars in the referenced EN are utilized by placing them on the floor and that they are capable of being utilized while so situated. While the Supergate III may be placed on the floor it would not be in a free standing position but would be placed against another surface to keep it upright. In testing the stability of the gate, in a free standing position, to perform the function for which it was designed, we noted that a slight touching was sufficient to knock it over and prevent it from performing that function. We further noted that the shipping container does not indicate that it is to be placed on the floor and the pictures on such container uniformly show that such is not the case.

Counsel indicates that the Supergate III would not be builders' ware as provided for in heading 3925 because of its portability and the fact it is not structural. Counsel further indicates that such article should not be classified in the provision for builders' ware since it is not sold in builder supply houses but is routinely sold in juvenile furniture outlets. While we do not disagree with counsel as to the portability of the instant article and that it may be available at a juvenile furniture outlet, that does not make it furniture. We note that such outlets carry many non-furniture items, e.g., bedding, diaper pails, etc. We disagree with counsel's statement that the gate is not structural. Although pressure mounted safety gates are most often temporarily mounted and would be in the nature of other household articles in heading 3924, HTSUSA, the subject is distinguishable from those gates. The factor that causes it to be distinguishable from other pressure gates is the fact that it is designed so that it can be temporarily or permanently installed in the desired area through the use of the rail sockets, swing gate hardware, screws or adhesive. When so installed the Supergate III is used in the same manner as any other gate provided for in Legal Note 11(e) to Chapter 39, HTSUSA. Further, when used as a swing gate it is very similar to a door which can also be easily removed by taking out the hinge pins. We believe that a plastic safety gate purchaser might opt for the instant gate over other similar articles because of its installation capabilities and have accordingly concluded that it is similar to other items that may be installed in a house and removed without difficulty.

Accordingly, we have concluded that the Supergate III is not an article of furniture and that Legal Note 2(t) to Chapter 39 is inapplicable.

HOLDING:

A plastic infant child safety gate which is capable of being pressure mounted against two opposing surfaces or otherwise mounted with rails, sockets, hardware, screws and adhesives on a flat surface or wrought iron rail or which can be hinge mounted, is classifiable in subheading 3925.90.0000, HTSUSA. Articles classified under this subheading, the provision for "Builders' ware of plastics, not elsewhere specified or included: Other," is subject to a general rate of duty of 5.3 percent ad valorem.

NYRL 897341 is affirmed as to the classification of the subject article, the only matter for which reconsideration was requested.

Sincerely,

John Durant, Director
Commercial Rulings Division

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