CBP Ruling H075936

HQ H075936 March 29, 2011 CLA-2 OT:RR:CTF:TCM H075936 ASM CATEGORY: Classification TARIFF NO.: 9503.00.00 William J. Maloney, Esq. Rode & Qualey Attorneys at Law 55 West 39th Street New York, NY 10018 RE: Revocation of HQ W967654; Tariff Classification of the "Jump 'n Slide" Dear Mr. Maloney: This is in reference to Headquarters Ruling Letter (HQ) W967654, dated May 3, 2007, which was issued to you on behalf of your client, Little Tikes(r) company (hereinafter "Little Tikes"), concerning the tariff classification of an inflatable slide, identified as the "Jump 'n Slide", under the Harmonized Tariff Schedule of the United States (HTSUS). In that ruling, U.S. Customs and Border Protection ("CBP") classified the merchandise as an article for "general physical exercise" under subheading 9506.99.60, HTSUS. We have reviewed HQ W967654 and found it to be in error. For the reasons set forth below, we hereby revoke HQ W967654. Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C. Section 1625(c)), 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), notice of the proposed revocation of HQ W967654, as described below was published in Vol. 44, No. 24, of the Customs Bulletin on June 9, 2010. No comments were received in response to the notice. FACTS: The subject article, which is identified as the "Jump 'n Slide", is an inflatable play structure surrounded on three sides by plastic mesh walls which are attached to red inflatable columns and yellow inflatable supports. There is an attached inflatable slide. The entire structure measures 9 x 12 x 6 feet. The inside dimensions measure 7 x 6 feet. The "Little Tikes"(r) catalog describes the "Jump 'n Slide" as having tall protective walls which "surround a large jumping area, including a big slide with side rails." The catalog goes on to say that "a heavy-duty air blower provides continuous inflation of the inflatable structure . . . that is intended for outdoor domestic family use only and not for use in public areas or for use as a rental." The promotional material further indicates that there is a weight limit of 250 lbs. and that it is for use with no more than 3 children at a time. Additional information provides "Must use on a soft play surface" and that it is for outdoor use only. The age range is from 3 to 8 years. ISSUE: Whether the "Jump'n Slide" is classified in subheading 9503.00.00, HTSUS, as a "toy" or in heading 9506.99.60, HTSUS, as an article for "general physical exercise". LAW AND ANALYSIS: Classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is made in accordance with the General Rules of Interpretation (GRI). 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. The following headings of the HTSUS are under consideration in classifying the subject article: 9503 Tricycles, scooters, pedal cars and similar wheeled toys; dolls' carriages; dolls, other toys; reduced-scale ('scale') models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof * * * 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: 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 EN's to heading 9503 provide, in relevant part, as follows: This heading covers: * * * (D) Other toys. This group covers toys intended essentially for the amusement of persons (children or adults). . . . This group includes: * * * (ix) Toy sports equipment, whether or not in sets (e.g., golf sets, tennis sets, archery sets, billiard sets; baseball bats, cricket bats, hockey sticks). * * * (xxiii) Play tents for use by children indoors or outdoors. The EN to heading 9506, states, in pertinent part, the following: This heading covers: * * * (B) Requisites for other sports and outdoor games (other than toys presented in sets, or separately, of heading 95.03), e.g.: * * * (12) Equipment of a kind used in children's playgrounds (e.g., swings, slides, see-saws and giant strides). * * * The EN to heading 9503 specifically indicates that "This group covers toys intended essentially for the amusement of persons (children or adults)". In order to be classified as a "toy" of Chapter 95, HTSUS, the toy must be designed and used principally for amusement and should not serve a utilitarian purpose. See HQ 086330, dated May 14, 1990; HQ 952186, dated April 29, 1993; HQ 954132, dated February 15, 1994; HQ 956779, dated September 29, 1994; and HQ 961530, dated October 21, 1998. In Minnetonka Brands, Inc. v. United States, 110 F. Supp. 2d 1020 (CIT 2000), the court classified full-figured, three-dimensional, plastic objects in the form of well-recognized children's characters as ". . . [t]oys representing animals or non-human creatures . . . Other" under subheading 9503.49.00, HTSUS. Id. at 1029. The court found that because the evidence showed that " ... the subject merchandise belongs to the class or kind of merchandise whose principal use is amusement, diversion or play", the merchandise is properly classified as "toys" of heading 9503, HTSUS. Id. at 1028. In Minnetonka, the CIT further noted that because heading 9503, HTSUS, is, in relevant part, a principal use provision, classification under this provision is controlled by the principal use "of goods of that class or kind to which the imported goods belong" in the United States at or immediately prior to the date of importation. See Additional U.S. Rule of Interpretation 1(a), HTSUS.1 The principal use of the class or kind of goods to which an import belongs is controlling, not the principal use of the specific import. (citations omitted). "Principal use" is defined as the use "which exceeds any other single use." (citations omitted). As a result, "the fact that the merchandise may have numerous significant uses does not prevent the Court from classifying the merchandise according to the principal use of the class or kind to which the merchandise belongs. (citations omitted). See E.M. Chems. v. United States, 20 C.I.T. 382, 387-388 (Ct. Int'l Trade 1996). As stated in United States v. The Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F.2nd 373 (1976), certain factors must be looked at to determine whether imported merchandise is of a certain "class or kind" as that expression is used in Additional U.S. Rule of Interpretation 1(a). These factors include: (1) the physical characteristics of the merchandise, (2) the expectation of the ultimate purchases, (3) the channels of trade of the merchandise, (4) the environment of the sale (accompanying accessories, manner of advertisement and display) (5) use in the same manner as merchandise which defines the class, (6) the economic practicality of so using the import, and (7) recognition in the trade of this use. _________________ 1 Additional U.S. Rules of Interpretation 1(a), HTSUS, provides: 1. In the absence of special language or context which otherwise requires-- (a) a tariff classification controlled by use (other than actual 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 the instant case, we apply the Carborundum factors as follows: (1) The general physical characteristics of the merchandise: The subject merchandise consists of a 9 foot by 12 foot inflated plastic surface surrounded by mesh walls, with an attached slide, in bright primary colors. The weight limit is 250 lbs and the surface is large enough for only 3 children. The use of bright primary colors is especially attractive and amusing to young children. The plastic walled structure is akin to a play tent and the bouncy surface is akin to toy sports equipment listed as exemplars of the heading in EN 95.03. The slide is akin to playground equipment listed in EN 95.06. In HQ 966135, dated March 28, 2003, CBP classified a plastic sandbox as playground equipment of heading 9506 because it was sturdy enough "... to be stored in all kinds of weather". However, even though the slide component and entire article is designed for outdoor use, it is not intended to be stored outdoors in all kinds of weather. Accordingly, these features weigh in favor of classification as toys. (2) The expectation of the ultimate purchasers: The ultimate purchasers expect that the product will be used in accordance with the instructions "for outdoor domestic family use only and not for use in public areas or for use as a rental." Such limited use is more representative of a toy rather than an article of outdoor play equipment. (3 & 4) The channels of trade in which the merchandise moves and environment of sale: The instant merchandise is distributed by Little Tikes(r), a toy company that specializes in indoor and outdoor play toys for children. The merchandise is sold in toy stores and the toy section of department stores, drug stores and supermarkets. This factor weighs in favor of classification as toys. (5) The usage of the merchandise: The merchandise is used as an active play area for no more than three young children to jump, bounce and slide. Compared to the durable rental units that can be used/stored outdoors in all kinds of weather and for accommodation of many children at one time, including children older than 8 years old, the subject article is for personal backyard use and amusement of no more than three young children between the ages of 3 to 8 years old. The website for this product includes testimonials from parents of 2-4 year old children, with such comments as "great toy", and "hours of fun". See "http://www.littletikes.com/toys/jump-slide-bouncer.aspx". This factor weighs in favor of toys. (6) The economic practicality of so using the import: The merchandise is moderately priced at $229.99 per unit compared to the inflatable structures used for carnivals which may be retail priced from $1000.00 to $2300.00 per unit. See New York Ruling (NY) N021533, dated January 31, 2008. (7) The recognition in the trade of use: The subject merchandise is recognized in the trade as an inflatable play area designed to amuse young children by bouncing and sliding in a backyard environment. This factor weighs in favor of toys. On the balance, we find that the merchandise belongs to the class or kind of goods known as toys which are classified in heading 9503, HTSUS. It is the conclusion of CBP, based on the above discussion, that the subject "Jump 'n Slide" is primarily used for amusement. As such, the merchandise is classified as a "toy" in heading 9503, HTSUS, and is excluded from classification in heading 9506, HTSUS. See EN 95.06(B). HOLDING: The subject merchandise, identified as the "Jump 'n Slide", is correctly classified in subheading, 9503.00.00, HTSUS, which provides for "Tricycles, scooters, pedal cars and similar wheeled toys; dolls' carriages; dolls, other toys; reduced-scale ("scale") models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof, Other". This provision is duty free at the general column one rate of duty. EFFECT ON OTHER RULINGS: HQ 967654, dated May 3, 2007, is hereby revoked consistent with the foregoing. In accordance with 19 U.S.C. Section 1625(c), this ruling will become effective 60 days after publication in the Customs Bulletin. Sincerely, Myles B. Harmon, Director Commercial and Trade Facilitation Division 7