CBP Ruling H097739

HQ H097739 March 29, 2011 CLA-2 OT:RR:CTF:TCM H097739 ASM CATEGORY: Classification TARIFF NO.: 9503.00.00 Ms. Patti Cordo American Cargo Express, Inc. 435 Division Street Elizabeth, NJ 07201 RE: Revocation of NY K82586; Tariff Classification of the "Banzai Falls Water Slide" and "Slam 'N Hoops Bouncer" Dear Ms. Cordo: This is in reference to New York Ruling Letter (NY) K82586, dated January 29, 2004, which was issued to you on behalf of the American Cargo Express company, concerning the tariff classification of the "Banzai Falls Water Slide" and "Slam 'N Hoops Bouncer", under the Harmonized Tariff Schedule of the United States (HTSUS). In that ruling, U.S. Customs and Border Protection ("CBP") classified the subject merchandise as articles for "general physical exercise" under subheading 9506.99.60, HTSUS. We have reviewed NY K82586 and found it to be in error. For the reasons set forth below, we hereby revoke NY K82586. 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 NY K82586, 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 "Banzai Falls Water Slide" is an inflatable play structure measuring 10 feet high by 18 feet long by 5 feet wide. The original water slide is advertised with a weight limit of 200 pounds. There is a splash landing area at the base of the structure and a water spray at the top. The top of the slide has an arch top with wall and rails that are constructed of poly vinyl chloride (PVC)-coated terylene material. A climbing wall is also made of PVC-coated terylene. Water bags are attached at various points around the slide to ensure stability of the structure. The article includes an electric blower motor that must run continuously to keep the structure inflated. Ground stake loops are included at two points to provide greater strength and durability. The "Slam 'N Hoops Bouncer" is an inflatable play structure measuring 13.8 feet in length by 8 feet in width. The "Slam 'N Hoops Bouncer" is inflated by means of an electric blower motor which provides a constant air supply to keep the unit inflated. There is an enclosed area for children to bounce with 36 inch high mesh doors and heavy duty zippers, a 7 foot tall climbing wall, and 8 foot tall basketball wall with a net hoop. The front of the unit has an inflated ledge with a raised inflated wall containing holes for children to crawl through for play in the enclosed area. The product description indicates that it is for use by up to 3 children with a maximum weight capacity not to exceed 200 pounds. ISSUE: Whether the "Banzai Falls Water Slide" and "Slam 'N Hoops Bouncer" are classified in subheading 9503.00.00, HTSUS, as a "toy" or in heading 9506.99.60, HTSUS, as articles 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 "Banzai Falls Water Slide" is constructed with a slide and attached splash area at the base of the slide which are akin to playground equipment listed in EN 95.06. However, 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". Here, even though the slide and attached splash area are designed for outdoor use, the article is not intended to be stored outdoors in all kinds of weather. Furthermore, the water area at the base of the slide is designed for a splash landing and provides a place for the child to have a cushioned water landing upon exiting the slide. This feature is not unlike that found in NY R01128, dated December 10, 2004, which classified an inflatable water slide as a "toy" in heading 9503, HTSUS. There a slide was designed to rest at the edge of a swimming pool. At the tip of the water slide was a raft-like protuberance that hung into the water and cushioned the sliding child before hitting the water. In addition, a water hose was hooked to a sprayer that was attached to the slide. This provided a steady stream of water and slippery surface for sliding into the pool. Accordingly, these features weigh in favor of classification as toys. The "Slam 'N Hoops Bouncer" consists of an inflated plastic surfaces surrounded by mesh walls and constructed of plastic in bright primary colors. The weight limit is 200 lbs and the surface is large enough for only 3 young 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. As we have already noted, HQ 966135, dated March 28, 2003, classified a plastic sandbox as playground equipment of heading 9506 because it was sturdy enough "... to be stored in all kinds of weather". However, the "Slam 'N Hoops Bouncer" 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 "Banzai Falls Water Slide" and "Slam 'N Hoops Bouncer" will be used for personal domestic family use. 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 "Banzai Falls Water Slide" and "Slam 'N Hoops Bouncer"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 "Banzai Falls Water Slide" is used as an active water slide play area for young children to splash 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, the subject article is just for personal backyard use. This factor weighs in favor of classification as toys. The "Slam 'N Hoops Bouncer" is used as an active play area for no more than three young children to jump and bounce. 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, the subject article is for personal domestic family use and the relatively small size (8 feet x 68 inches) would limit use of the article to no more than 2 young children at a time. This factor weighs in favor of toys. (6) The economic practicality of so using the import: The "Banzai Falls Water Slide" is priced at $379.00 per unit and the "Slam 'N Hoops Bouncer" is priced at $249.99 per unit. Both of these articles are moderately priced 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 sliding, splashing, and climbing and/or bouncing and playing in a domestic family environment. This factor weighs in favor of toys. Finally, we note that the following CBP rulings classified substantially similar inflatable play structures as "toys" of heading 9503, HTSUS: NY N021006, dated January 10, 2008 (inflatable bounce house); NY N015704, dated September 12, 2007 ("Jump 'N Jam Sports Center"); NY N016735, dated September 21, 2007 ("Victorian Inflatable Playhouse Toy"); NY N019323, dated November 20, 2007 ("Workout Ring Inflatable Toy"); and NY N013608, dated July 12, 2007 ("Inflatable Air-Cade Wall Court"). 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 "Banzai Falls Water Slide" and "Slam 'N Hoops Bounder" 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 "Banzai Falls Water Slide" and "Slam 'N Hoops Bouncer", 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: NY K82586, dated January 29, 2004, 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