Request for Binding Ruling; classification of a balance board

HQ H288100 December 18, 2017 CLA-2 OT:RR:CTF:CPM H288100 CkG CATEGORY: Classification TARIFF NO: 9506.91.00 Mr. Todd Brand Global Trade Compliance Director Liberty Diversified International, Inc. 5600 Highway 169 N New Hope, MN 55428 RE: Request for Binding Ruling; classification of a balance board Dear Mr. Brand: This is in response to your request of June 08, 2017, on behalf of Safco Products Company, for a binding ruling on the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of a balance board. FACTS: The product is described as the “Kick™ Balance Board”. It is an oval board, measuring approximately 32“L by 12”W, constructed with a flat top layer of polyurethane foam attached to a rounded base of injection molded plastic. The board is used with the rounded base facing down; as only part of the base is in contact with the ground, the board promotes low impact movement from side to side or back and forth as the user shifts position to maintain balance. Molded indents on either side of the board provide handgrips for easier portability. ISSUE: Whether the instant balance board is classified in heading 9403, HTSUS, as other furniture; in heading 9506, HTSUS, as an article for general physical exercise; or in heading 3926, HTSUS, as an other article of plastic. LAW AND ANALYSIS: Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs).  GRI 1 provides that classification shall be determined according to the terms of the headings 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 or notes do not require otherwise, the remaining GRIs 2 through 6 may be applied. The HTSUS provisions under consideration are as follows: 3926: Other articles of plastic and articles of other materials of headings 3901 to 3914: 3926.90: Other: 3926.90.99: Other… * * * 9403: Other furniture and parts thereof: 9403.70: Furniture of plastics: 9403.70.80: Other… * * * 9506: Articles and equipment for general physical exercise, gymnastics, athletics, other sports (including table-tennis) or outdoor games, not specified or included elsewhere in this chapter; swimming pools and wading pools; parts and accessories thereof: Other: 9506.91.00: Articles and equipment for general physical exercise, gymnastics or athletics; parts and accessories thereof… * * * Note 2 to Chapter 39 provides, in pertinent part: 2. This chapter does not cover: (y) Articles of chapter 95 (for example, toys, games, sports equipment); or Legal Note 2 to Chapter 94 provides: 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 or ground. * * * * The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs 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). The General Explanatory Note to Chapter 94 states, in pertinent part, as follows: For the purposes of Chapter 94, the term "furniture" means: 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, cafés, restaurants, laboratories, hospitals, dentists, surgeries, etc. …(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). (B) The following: (i) Cupboards, bookcases, other shelved furniture and unit furniture, designed to be hung, to be fixed to the wall or to stand one on the other or side by side, for holding various objects or articles (books, crockery, kitchen utensils, glassware, linen, medicaments, toilet articles, radio or television receivers, ornaments, etc.) and separately presented elements of unit furniture. EN 94.03 provides, in pertinent part, as follows: The heading includes furnitures for :   Private dwellings, hotels, etc., such as : cabinets, linen chests, bread chests, log chests; chests of drawers, tallboys; pedestals, plant stands; dressingtables; pedestal tables; wardrobes, linen presses; hall stands, umbrella stands; sideboards, dressers, cupboards; foodsafes; bedside tables; beds (including wardrobe beds, campbeds, folding beds, cots, etc.); needlework tables; stools and foot-stools (whether or not rocking) designed to rest the feet, fire screens; draughtscreens; pedestal ashtrays; music cabinets, music stands or desks; playpens; serving trolleys (whether or not fitted with a hot plate).   Offices, such as : clothes lockers, filing cabinets, filing trolleys, card index files, etc.   Schools, such as : schooldesks, lecturers’ desks, easels (for blackboards, etc.).   Churches, such as : altars, confessional boxes, pulpits, communion benches, lecterns, etc.   Shops, stores, workshops, etc., such as : counters; dress racks; shelving units; compartment or drawer cupboards; cupboards for tools, etc.; special furniture (with cases or drawers) for printingworks.   Laboratories or technical offices, such as : microscope tables; laboratory benches (whether or not with glass cases, gas nozzles and tap fittings, etc.); fumecupboards; unequipped drawing tables.   EN 9506 provides, in pertinent part, as follows: This heading covers : (A)  Articles and equipment for general physical exercise, gymnastics or athletics, e.g.: Trapeze bars and rings; horizontal and parallel bars; balance beams, vaulting horses; pommel horses; spring boards; climbing ropes and ladders; wall bars; Indian clubs; dumb bells and bar bells; medicine balls; jump balls with one or more handles designed for physical exercises; rowing, cycling and other exercising apparatus; chest expanders; hand grips; starting blocks; hurdles; jumping stands and standards; vaulting poles; landing pit pads; javelins, discuses, throwing hammers and putting shots; punch balls (speed bags) and punch bags (punching bags); boxing or wrestling rings; assault course climbing walls. * * * * You request classification of the subject merchandise in heading 9403, HTSUS, as other furniture. As the subject merchandise is not specifically enumerated in the HTSUS or ENs as an example of furniture of Chapter 94, whether the subject board may be considered furniture for the purposes of heading 9403 depends on whether it is a movable article designed for placing on the floor or ground, and whether it is used, with a utilitarian purpose, to equip private dwellings, offices, etc. In the instant case, the Kick™ balance board is lightweight and equipped with hand grips for easier portability has a flat bottom surface, and is intended to be used as a platform while standing. Therefore, the balance board is designed for placing on the ground. However, the balance board is not used in the manner of furniture, for long-term storage or to equip a private dwelling, office, etc. The Random House Dictionary of the English Language  (unabridged ed.; 1973) defines the word "equip" as meaning: "[t]o furnish or provide with whatever is needed for service or for any undertaking." The Oxford English Dictionary similarly defines “equip” as [t]o furnish for service’; to provide with what is requisite for efficient action, as arms, instruments, or apparatus of any kind.” The examples of furniture covered by heading 9403 are used to hold contain or display other articles (cabinets, linen chests, pedestals, side tables, clothes lockers, filing cabinets, bed frames, etc). See, e.g., HQ H281347, dated May 9, 2017. Based on the meaning of the word “equip” and the examples provided in the Explanatory Notes, furniture of heading 9403 ”equips” a dwelling, office, etc. by holding, protecting, storing or displaying articles in such settings. The instant balance board does not perform any of these functions, and therefore does not “equip” a dwelling or office for the purposes of heading 9403, HTSUS. Indeed, in all the exemplars of articles considered to be furniture in the ENs, we do not find any whose use or function is comparable to the instant balance board. we instead find the balance board to be more akin to items CBP has declined to classify in heading 9403, such as a stand for an exercise bike (New York Ruling Letter (NY) I81071, dated May 3, 2002), a massage standing foot rest (NY L87805, dated October 6, 2005), or a pedicure platform (NY I84578, dated August 16, 2002). Accordingly, the balance board is not furniture of heading 9403, HTSUS. Nor is the balance board classifiable in heading 9403 as a part of furniture. While the balance board may be used in conjunction with office furniture such as a standing desk, there is nothing in the design of the balance board which limits its use to that particular application; it is not in any way integrated with such desks, nor does its design require or even particularly predispose it for use with standing desks. The subject balance board is a stand-alone article intended to improve comfort while standing. A desk, standing or otherwise, is otherwise complete and usable without the balance board. The instant balance board is designed to “promote a more active workday” and “low intensity movement”. Balance boards are typically designed and marketed as training or fitness devices. See e.g., https://www.amazon.com/balance-board/b?ie=UTF8&node=3407861); https://www.amazon.com/Best-Sellers-Sports-Outdoors-Balance-Boards/zgbs/sporting-goods/3407861; http://www.bestproducts.com/fitness/equipment/g415/best-wobble-and-balance-boards/. CBP has similarly classified a balance board in heading 9506, HTSUS. See NY N279743, dated October 21, 2016, on a “Simply Fit Board” (“The exercise device is a slightly wavy rectangular shape that bows in the middle. The user balances while standing with one foot placed on opposite ends of the board and simultaneously twists one’s hips back and forth in a rhythmic motion. It is constructed of lightweight ABS plastic for portability but is strong enough to accommodate someone weighing up to 400 lbs. The exercise device is packaged with a user guide and workout DVD.”) Thus, we must consider whether the instant board is classifiable in heading 9506, HTSUS. In order to be classified in heading 9506, HTSUS, an article must qualify as equipment for "general physical exercise." Such equipment includes machines such as rowing, cycling, treadmill, stair steppers, and other exercising apparatus, dumbbells, barbells, climbing ropes, medicine balls, chest expanders and grips.  The American Heritage® Dictionary of the English Language: (4th ed., 2000) defines the term "exercise" in the following manner:  “Activity that requires physical or mental exertion, especially when performed to develop or maintain fitness: took an hour of vigorous daily exercise at a gym. 4. A task, problem, or other effort performed to develop or maintain fitness.” The Cambridge Advanced Learner's Dictionary, defines "exercise" when used as a noun as "physical activity that you do to make your body strong and healthy.” You contend that the Kick™ board offers minimal benefit for exercise or fitness because that other balance boards provide a more extreme movement. For example, some balance boards simply consist of a round, flat platform on top of a single fulcrum and therefore promoting a greater range of motion. However, other boards marketed and sold as fitness devices—including the “Simply Fit Board” CBP classified in heading 9506, HTSUS—more closely resemble the Safco board in appearance and function, requiring a less aggressive motion See e.g., the Gaiam “Evolve” balance board, the “Wobble Cushion” by Vive, or the “5 in 1 Wobble Balance Board” by 5280 Fitgenx. Furthermore, the range of motion provided by the Safco board is sufficient to promote physical fitness; even keeping both feet in the middle of the board (where the stability is greatest), the user must shift position to maintain balance. The user also has the option of placing both feet at opposite ends of the device, which are not in contact with the ground, for a greater challenge. We further note that CBP has consistently classified comparable articles designed for placing on the floor or ground such as floor mats or exercise balls for yoga, pilates and similar activities, in heading 9506, HTSUS. See e.g., NY N144757, dated February 23, 2011 (balance ball chair); NY K82380, dated February 5, 2004 (pilates kit including an exercise mat and rubber exercise ball); NY I81913, dated June 4, 2002 (exercise ball); NY N104295, dated May 20, 2010 (exercise mat); NY J80898, dated February 28, 2003 (yoga mat); NY K87209, dated June 22, 2004 (yoga mat). Accordingly, we find that the instant balance board is classified in heading 9506, HTSUS, as an article for general physical exercise.  HOLDING: By application of GRI 1, the Safco balance board is classified in heading 9506, HTSUS, specifically subheading 9506.91.00, HTSUS, which provides for “Articles and equipment for general physical exercise, gymnastics, athletics, other sports (including table-tennis) or outdoor games, not specified or included elsewhere in this chapter; swimming pools and wading pools; parts and accessories thereof: Other: Articles and equipment for general physical exercise, gymnastics or athletics; parts and accessories thereof.” The 2017 column one, general rate of duty is 4.6% ad valorem. 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 online at http://www.usitc.gov/tata/hts/. Sincerely, Myles B. Harmon, Director Commercial and Trade Facilitation Division