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HQ 960859




June 5, 1998

CLA-2 RR:CR:GC 960859 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 9401.80.4045

Mr. John M. Peterson
Neville, Peterson & Williams
80 Broad Street
34th Floor
New York, NY 10004

RE: Stationary Entertainer; NYRL A85618 affirmed

Dear Mr. Peterson:

This is in reference to your August 11, 1997, letter on behalf of Graco Children's Products, Inc., requesting reconsideration of New York Ruling Letter (NYRL) A85618, dated July 29, 1996, classifying an article identified as a "Stationary Entertainer" under subheading 9401.80.4045, of the Harmonized Tariff Schedule of the United States (HTSUS), which provides for "[s]eats (other than those of heading 9402), whether or not convertible into beds, and parts thereof: [o]ther seats: [o]ther: [o]ther." You are now requesting reconsideration of this classification, claiming that the Stationary Entertainer is classifiable as a toy.

FACTS:

The article is identified as a Stationary Entertainer. It is designed to be placed on the floor and functions as a seat restraint for babies. Its plastic components measure 25 x 25 x 19 inches and consist of a donut-shaped tray supported by three tubular-shaped, height-adjustable legs which are attached to a round base via rubber accordion-like braces. The center of the donut-shaped tray has a component which swivels 360ยง. Attached to the swiveling component is a padded, washable cotton seat. Attached to the tray are eight different toys. The toys consist of a phone, steering wheel, "squeaker," mirror, bead loop, "clicker," teether and music button.

The Stationary Entertainer contemplates placing the baby in the seat and allowing the baby's feet to touch the base. When the baby's feet touch the base, he/she is able to swivel the chair portion around the entire tray and push up and down so that the tray component bounces. It appears from the enclosed pictures that once placed in the seat, a baby is unable to free him/herself from it.

ISSUE:

Whether the Stationary Entertainer is classifiable as a seat or as a toy.

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 GRI may then be applied.

Chapter 94 provides, in pertinent part, for: furniture; bedding, mattresses, mattress supports, cushions and similar stuffed furnishings. In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive, or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See, T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The General ENs to Chapter 94, HTSUS, state, in pertinent part, that:

For the purposes of this Chapter, the term "furniture" means:

(A) 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, cinemas, offices, churches, schools, cafes, restaurants, laboratories, hospitals, dentists' surgeries, etc., or ships, aircraft, railway coaches, motor vehicles, caravan-trailers or similar means of transport. (It should be noted that, for the purposes of this Chapter, articles are considered to be "movable" furniture even if they are designed for bolting, etc., to the floor, e.g., chairs for use on ships). Similar articles (seats, chairs, etc.) for use in gardens, squares, promenades, etc., are also included in this category.

(B) The following:

(ii) Seats or beds designed to be hung or to be fixed to the wall.

EN 94.01, states, in pertinent part, that:

Subject to the exclusions mentioned below, this heading covers all seats... for example: Lounge chairs, arm-chairs, folding chairs, deck chairs, infants' high chairs and children's seats designed to be hung on the back of other seats (including vehicle seats), grandfather chairs, benches, couches (including those with electrical heating), settees, sofas, ottomans and the like, stools (such as piano stools, draughtsmen's stools, typists' stools, and dual purpose stool-steps).

Armchairs, couches, settees, etc., remain in this heading even if they are convertible into beds.

Based upon the above-cited ENs, it is our opinion that the Stationary Entertainer is ejusdem generis with the listed articles and therefore is described by heading 9401, HTSUS. Such an opinion is based on the fact that the Stationary Entertainer is constructed for placing on the floor or ground and is used, mainly for a utilitarian purpose; to provide seated restraint for a baby. This utilitarian purpose is demonstrated by the article's design and advertisement. Quite simply, the article is designed so that a baby, once placed in the seat is unable to remove him/herself from it. Furthermore, the Stationary Entertainer is advertized in a section of the J.C. Penney catalog identified as "Spaces for Babies." This category includes baby bungee seats and various gates, as well as playpens.

You have suggested that while the Stationary Entertainer may meet the description of heading 9401, HTSUS, it is nonetheless excluded from classification in this heading by operation of Note 1(l) to Chapter 94. Note 1(l) to Chapter 94 states that:

This Chapter does not cover:

(l) Toy furniture or toy lamps or lighting fittings (heading No. 95.03), billiard tables or other furniture specially constructed for games (heading No. 95.04), furniture for conjuring tricks or decorations (other than electric garlands) such as Chinese lanterns (heading No. 95.05)

You believe the Stationary Entertainer meets the description of heading 9503, HTSUS.

Heading 9503 provides for "[o]ther toys; reduced-size ("scale") models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof." The term "toy" is not defined in the HTSUS. The ENs to Chapter 95 state, in pertinent part, that "[t]his Chapter covers toys of all kinds whether "designed for the amusement of children or adults." Although not set forth as a definition of "toys," we have interpreted the just-quoted passage from the ENs as equating "toys" with articles "designed for the amusement of children or adults," although we believe such design must be corroborated by evidence of the articles' principal use.

When the classification of an article is determined with reference to its principal use, Additional U.S. Rule of Interpretation 1(a), HTSUS, provides that, in the absence of special language or context which otherwise requires, such use is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use. In other words, the article's principal use at the time of importation determines whether it is classifiable within a particular class or kind.

While Additional U.S. Rule of Interpretation 1(a), HTSUS, provides general criteria for discerning the principal use of an article, it does not provide specific criteria for individual tariff provisions. However, the U.S. Court of International Trade (CIT) has provided factors, which are indicative but not conclusive, to apply when determining whether merchandise falls within a particular class or kind. They include: general physical characteristics, the expectation of the ultimate purchaser, channels of trade, environment of sale (accompanying accessories, manner of advertisement and display), use in the same manner as merchandise which defines the class, economic practicality of so using the import, and recognition in the trade of this use. United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F. 2d 373 (1976), cert. denied, 429 U.S. 979 (hereinafter Carborundum.)

You assert that the physical design of the article, its ability to swivel and bounce together with its eight separately attached toys all indicate that the Stationary Entertainer is principally designed to amuse. In support of this contention you cite to NYRLs 817987 dated January 25, 1996, which classified a Nursery Rocking Boat as a toy, and 885896 dated June 4, 1996, and 801436 dated September 22, 1994, which both classified rocking horses as toys. We are of the opinion that because none of the rocking articles had any restraint element to their design, nor functioned principally as seats, they are not substantially similar to the Stationary Entertainer. Their only purpose was to allow a child to voluntarily amuse themselves by rocking back and forth at will. As such, the rulings classifying the rocking horses and boat as toys are not controlling.

In addition, you cite Headquarters Ruling Letter (HRL) 958785, dated July 26, 1996, which classified an article described as a "Lean On Me Activity Bolster." The article was constructed from a solid piece of "U"- shaped plastic foam that was covered with brightly printed fabric in a jungle motif. A separate cushion encased in fabric was located in the middle of the "U" on the bottom side of the article. Attached to the top of the Lean On Me were five separate toys designed to amuse a baby or young child. In addition to these five toys, the Lean On Me incorporated a cup/bottler holder so that a baby's bottle (or a child's drinking cup) could be held in place while the baby or child was playing with the Lean On Me. Mesh storage pockets were sewn to the sides of the Lean On Me for the storage of additional toys. Customs classified the article as toy, holding that the seating element was a secondary design element and that most children would use the article either seated outside of the Lean On Me or when they crawled into the Lean On Me head first. Again, as with the rocking articles, a child could voluntarily choose to sit or not sit in the Lean On Me. Such is not the case with the Stationary Entertainer. Therefore, HRL 958785 is also not controlling here.

Finally you state that "swiveling bases and bendable legs are not ordinary features of "seats" or other furniture articles." We disagree. Several articles listed in EN 94.01, have bendable legs. Furthermore, our review of several retail circulars indicates that other" baby" seats specifically high chairs and car seats are now designed to have adjustable height on their legs and positions for the seats.

In Ideal Toy Corp. v. United States, 78 Cust. Ct. 28 (1977), the court stated that "when amusement and utility become locked in controversy, the question becomes one of determining whether amusement is incidental to the utilitarian purpose, or whether the utility purpose is incidental to the amusement." Clearly, elements of the Stationary Entertainer are designed to amuse a child. However, Customs believes those design elements, the swiveling and bouncing of the chair and the attached toys, are secondary to the article's primary purpose, restraint. The amusing elements of the Stationary Entertainer are there merely to occupy a child so they will not realize the primary purpose of the article, confinement. Evidentiary support of this primary purpose is found in the the Stationary Entertainer's advertising. It is advertized not in a toy section but in the "Spaces for Babies" section of the J.C. Penney catalog. This section does not include toys but other restraint articles such as bungee seats, baby gates and playpens. For classification of a similar articles see NYRLs 860301 dated February 13, 1991(classifying a "Kiddy Resin Stack Chair and Graco Walker/Bouncer/Gym"), and NYRL A86517, dated August 19, 1996(classifying an article identified as a "Bungee Baby Bouncer").

HOLDING:

The Stationary Entertainer is classifiable under subheading 9401.80.4045, HTSUS, which provides for "[s]eats (other than those of heading 9402), whether or not convertible into beds, and parts thereof: [o]ther seats: [o]ther: [o]ther, and has a 1998 column one duty rate of 0.5 percent ad valorem.

NYRL A85618 is affirmed.

Sincerely,

John Durant, Director
Commercial Rulings Division


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