HQ 956974 - "Ball Pit" Children's Play Pit; Other Toys Put Up In Sets - United States International Trade Commision Rulings

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HQ 956974

November 23, 1994

CLA-2 CO:R:C:F 956974 GGD

CATEGORY: CLASSIFICATION

TARIFF NO.: 9503.70.80

Lawrence R. Pilon, Esquire
Hodes & Pilon
33 North Dearborn Street, Suite 2204
Chicago, Illinois 60602-3109

RE: "Ball Pit" Children's Play Pit; Other Toys Put Up In Sets

Dear Mr. Pilon:

This letter is in response to your inquiry of August 25, 1994, on behalf of the Hedstrom Corporation, concerning the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of an article identified as a "Ball Pit," to be imported from Canada. Photographs and marketing information were submitted with your inquiry.

FACTS:

The article to be imported, identified by model no. 8-440, essentially consists of two components: a nylon mesh and textile, dome-shaped enclosure (a tent), measuring 52 inches in width by 52 inches in length by 48 inches in height; and 500 multi-colored, hollow, plastic balls, each measuring approximately 3 inches in diameter.

The front, back, and bottom panels of the tent component are made of brightly colored, woven nylon taffeta, with a plastic zippered opening in the front. The left and right side panels are comprised largely of nylon mesh. On the exterior, flexible plastic poles connect the base's opposite corners, arcing over the top of the tent through fabric loops, giving maximum space to the interior. The 500 balls fill the ball pit to an approximate depth -2-
of nine inches. The article is designed and intended to be used as a smaller, or home, version of ball pits currently featured at fast food restaurants and children's amusement centers.

The tent is a product of China and the balls are of U.S. origin. The components will be put up together in Canada and imported in a retail package suitable for direct sale to consumers without repacking.

ISSUE:

Whether the article is more properly classified in heading 6306, HTSUS, as a tent, or in heading 9503, HTSUS, as a toy set.

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the harmonized system is such that virtually all goods are classified by application of GRI 1, that is, 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 GRIs may then be applied. The Explanatory Notes (ENs) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRIs.

Among other items, heading 6306, HTSUS, covers tents, including screen houses. Chapter 63 falls within section XI, HTSUS, which covers textiles and textile articles. Note 1(t) to section XI, states that the section does not cover "Articles of chapter 95 (for example, toys, games, sports requisites and nets)." The ENs to heading 6306 indicate that tents are shelters of fabric, usually with a roof and sides or walls that permit the formation of an enclosure. The ENs also indicate that the heading covers tents of various sizes and shapes (including tents for military, camping, circus, and beach use), whether or not coated or laminated, and whether or not presented with poles, pegs, ropes, or other accessories.

You essentially contend that an article that is classifiable as a tent must provide substantial shelter, that the ball pit is a toy serving none of the functions of a shelter or tent, and that -3-
the article is, and/or will be, designed, constructed, marketed, sold, and used principally to contain balls and provide amusement. You assert that even if found to be a tent, the ball pit is an article of chapter 95 that is excluded from heading 6306 by note 1(t) to section XI.

You also cite Headquarters Ruling Letters (HRLs) 085353 and 954239 (issued October 20, 1989, and September 14, 1993, respectively), in which the merchandise at issue in both HRLs was a play bed tent, held not classifiable in heading 6306, HTSUS. The article was designed to fit over a twin-size mattress for use in a child's bedroom, could not be used for camping, and was found to be clearly distinguishable from indoor/outdoor play tents.

In this case, we find that the ball pit's tent component is an indoor/outdoor play tent. A primary feature noted in the marketing information submitted is the article's "Indoor/Outdoor Use." This tent is not designed to be fit onto a mattress, nor would its user be completely bereft of shelter from sun or light winds. In HRL 088644, issued June 11, 1991, this office classified a tent similar to the ball pit's tent component in heading 6306, HTSUS. In response to arguments similar to those presented here, we noted that not all tents classified in heading 6306, would withstand hail, snow, etc., and that how and where an article is sold is an ancillary consideration for classification purposes. Although we find that, if imported separately, the ball pit's tent component is classified in heading 6306, HTSUS, we must now find the proper classification for the tent and the 500 plastic balls that are classifiable in heading 9503.

Heading 9503, HTSUS, applies to "other toys," i.e., all toys not specifically provided for in the other headings of chapter 95. Although the term "toy" is not specifically defined in the tariff, the ENs to chapter 95, HTSUS, indicate that the chapter covers toys of all kinds whether designed for the amusement of children or adults. It has been Customs position that toys should be designed and used principally for amusement.

The ENs to heading 9503 indicate that certain toys, including toy arms, tools, gardening sets, tin soldiers, etc., are often put up in sets. The ENs to heading 9503 further suggest that collections of items separately classifiable in other headings are classified in chapter 95 when put up in a form clearly indicating their use as toys (e.g., instructional toys such as chemistry sets, sewing sets, etc.). -4-

In HRL 950700, issued August 25, 1993, we discussed the circumstances in which certain items, normally classified elsewhere in the HTSUS, may be classified in subheading 9503.70 as toys put up in sets. We noted that the subheading encompasses a combination of two or more mutually complementary, complete articles in a retail package, the essential character of which is established by the combination of the items, and not by any individual article in the combination. The components should generally be used together, i.e., some connection exists between the items which work together to provide amusement. When an article is comprised entirely or (in this case) partly of components individually classifiable elsewhere in the HTSUS, the manner in which the items are put up together (e.g., packaged and sold as a combination) should convert the components from their designs and uses as individual articles, to toys.

We find that the tent has been converted from a fabric shelter to a safe enclosure in which children and 500 balls (at a depth of approximately 9 inches) are brought and kept together to provide amusement. In addition, when put up in this manner, balls normally used to throw, roll, and catch, become a safe medium in which to burrow, wade, fall, and generally cavort. We find that these components are complementary, that no one item predominates over another, and that the combination is clearly indicated for use as a toy. The article is properly classified in subheading 9503.70.80, HTSUS.

If you have questions concerning the country of origin marking appropriate for this article, you may request a binding ruling regarding the matter under Part 181, Customs Regulations (19 CFR Part 181).

HOLDING:

The "Ball Pit" children's play pit, identified by model no. 8- 440, is properly classified in subheading 9503.70.80, HTSUS, the provision for "Other toys, put up in sets or outfits, and parts and accessories thereof: Other: Other." The applicable duty rate is 6.8 percent ad valorem.

Sincerely,

John Durant, Director

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