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HQ 961120




October 14, 1998

CLA-2 RR:CR:GC 961120 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 9503.90.0070

Mr. William C. Neal
The Little Tikes Company
2180 Barlow Road
Hudson, Ohio 44236

RE: Sun Canopy; Accessory to the "Sun & Shade Sandbox"

Dear Mr. Neal:

This is in reference to your October 15, 1996, letter to the Director, Customs National Commodity Specialist Division, New York, requesting a binding classification for a sun canopy under the Harmonized Tariff Schedule of the United States (HTSUS). Company literature depicting the article as well as a sample was submitted with your request. Your letter was referred to this office for reply. We regret the delay in responding.

FACTS:

The article is designated as item 682570000. It is a sun canopy constructed of either nylon or polyester woven fabric. It measures approximately 40 inches by 42 inches and has rounded corners. The canopy has a metal strip sewn into its edges which shapes it. Four textile fabric tabs are sewn onto the edges to facilitate the canopy's attachment to the top of the plastic posts of the "Sun & Shade Sandbox." The fabric tabs have had hemmed holes cut in them which are slipped into complementary plastic buttons on the plastic posts. This secures the canopy to the top of the posts and creates a cover which shields children playing in the sandbox. When the sandbox is not in use, the canopy is removed from the top of the posts and attached to the base of the box to act as a protective cover from the elements.

After importation, the canopy will be combined with item number 4850 "Sun & Shade Sandbox." This combination is then shipped to various retail outlets.

ISSUE:

Whether the canopies are accessories to sandboxes.

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI's). The systematic detail of the HTSUS 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 GRI's may then be applied.

In Bauerhin Technologies Ltd. Partnership v. U.S. 110 F.3d 774 (Fed.Cir. 1997), (hereinafter Bauerhin) the United States Court of Appeals for the Federal Circuit held that canopies for infant car seats which were solely dedicated for use with child safety seats, and were neither designed nor sold to be used independently, were properly classified as parts of car seats. Like the canopies in Bauerhin, these canopies are solely dedicated for use with the sandboxes, and are not designed nor sold to be used independently. As such, they have the potential for being considered a part of the sandbox for tariff purposes, if the sandbox is classifiable under a heading which provides a subheading for parts and accessories.

We are of the opinion that the sandboxes are classifiable as toys. Heading 9503, HTSUS, 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. However, 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 FR 35127, 35128 (August 23, 1989).

The ENs to Chapter 95, HTSUS, 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.

The physical characteristics of the sandbox indicate that it is classifiable as a toy. While it has a container component, holding sand, it holds that sand so that children may play in and with it. Such play indicates that the article has a significant amount of manipulative play value. In addition, the sandbox is not the usual container used for packing and storing sand. Finally, these sandboxes are sold in the toy channel of trade, not that for construction or household wares. All of these factors indicate that the sandboxes are classifiable in heading 9503, HTSUS. As the canopies are parts of the sandboxes they are classifiable under subheading 9503.90.0070, HTSUS, which provides for other toys; reduced-size ("scale") models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof:[o]ther: [p]arts and accessories. .
HOLDING:

The sun canopies are classifiable under subheading 9503.90.0070, HTSUS, which provides for [o]ther toys; reduced-size ("scale") models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof:[o]ther: [p]arts and accessories. The applicable rate of duty is free.

Sincerely,

John Durant, Director
Commercial Rulings Division

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