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HQ 966135




March 28, 2003

CLA-2 RR:CR:GC 966135 BJB

CATEGORY: CLASSIFICATION

TARIFF NO.: 9506.99.60

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

RE: Revocation of HQ 961120; Sandbox covers

Dear Mr. Neal:

On October 14, 1998, this office issued you Headquarters Ruling Letter (HQ) 961120, classifying a “sandbox canopy and cover” under the Harmonized Tariff Schedule of the United States (HTSUS), in subheading 9503.90.00, HTSUS, as “[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[.]”

We have reviewed the ruling in HQ 961120, and have determined the classification to be incorrect. This ruling revokes HQ 961120 and sets forth the correct classification.

Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625(c)(1)), 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 (1993), a notice of proposed modification was published on January 29, 2003, in the Customs Bulletin, Volume 37, Number 5, proposing to revoke HQ 961120, dated October 14, 1998, and to revoke the tariff treatment pertaining to the tariff classification of a “sand box canopy and cover.”

FACTS:

The merchandise is identified as a sun canopy and cover for a sandbox, model #682570000 (sandbox cover), made for use with the “Sun & Shade Sandbox,” model #4850. The sandbox cover is made of “either nylon or polyester woven fabric” measuring approximately 40-inches by 42-inches. The cover has four textile fabric tabs, each with a hemmed hole, to secure the cover to plastic buttons attached at the tops of the sandbox’s four posts.

The cover is designed to provide shade as a canopy when the sandbox is in use, and protective cover, attached to the base of the sandbox, when it is not.

ISSUE:

Whether the sandbox cover is classifiable under heading 9503, HTSUS, as “[o]ther toys; . . .; parts and accessories thereof[;]” heading 9506, HTSUS, as “outdoor games, not specified or included elsewhere in this chapter; . . .; parts and accessories thereof[;]” or elsewhere in the HTSUS?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRIs). Under General Rule of Interpretation (GRI) 1, HTSUS, goods are to be classified according to the terms of the headings and any relative section or chapter notes, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes (ENs), although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are generally indicative of the proper interpretation of these headings. Customs believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

The HTSUS (2003) provisions under consideration are as follows:

Other made up articles, including dress patterns:

Other:

6307.90.98 Other
Other toys; reduced-size (“scale”) models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof:

Other

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:

Other:

Other

An article is to be classified according to its condition as imported. See XTC Products, Inc. v. United States, 771 F. Supp. 401, 405 (1991). See also United States v. Citroen, 223 U.S. 407 (1911). In its condition, as imported, the subject good is a sandbox cover made of nylon or polyester fabric.

At GRI 1, heading 6307, HTSUS, provides for “[o]ther made up articles, including dress patterns[.]” However, Note 1(t) to Section XI, (which covers heading 6307, HTSUS), provides that the section does not cover: “[a]rticles of chapter 95 (for example, toys, games, sports requisites and nets)[.]” Therefore, if the sandbox cover is a good classifiable under heading 9503, or 9506, HTSUS, it cannot be classifiable under Chapter 63, HTSUS.

Heading 9503, HTSUS, provides for, in pertinent part, “[o]ther toys . . .; parts and accessories thereof[,]” and heading 9506, HTSUS, provides for, in pertinent part, ”[a]rticles and equipment for. . . other sports (including table-tennis) or outdoor games, not specified or included elsewhere in this chapter; . . .; parts and accessories thereof[.]”

Since articles and equipment for outdoor playground games provide some amusement, the issue is whether or not the sandbox provides the “amusement” and “play” of an “other toy” described in heading 9503, HTSUS. The determination of whether the sandbox (model 4850), for which the subject cover is designed, is classifiable as an “other toy” or as an “outdoor game,” is not prima facie clear.

In HQ 961120, the issue before Customs was whether the subject sandbox cover was an accessory to a sandbox. Customs determined that the cover was classifiable in heading 9503, HTSUS, which provides for, in pertinent part, “parts or accessories” of “[o]ther toy[s.]” The sandbox, as dicta, was classified in heading 9503, HTSUS, as an “[o]ther toy[.]”

With regard to heading 9503, HTSUS, the term “toy” is not specifically defined in the tariff, or the ENs. The ENs to Chapter 95, HTSUS, provide that: “this chapter covers toys of all kinds whether designed for the amusement of children or adults.”

It is Customs position that a toy is essentially a plaything, something that is intended and designed for the amusement of children or adults, and which by its very nature and character is reasonably fitted for no other purpose. Customs views the “amusement” requirement as indicating that toys should be designed and used principally for amusement and that they not serve a utilitarian purpose. See Additional U.S. Rule of Interpretation 1(a), HTSUS. Further, Customs defines “principal use” as that use which exceeds each other single use of the article.

A sandbox is designed to hold sand in a prescribed area and provide a play environment for children’s playground games. A sandbox itself does not provide the manipulative play value or frivolous amusement characteristic of toy playthings. In this case, children play with the sand in the sandbox, they do not play with the sandbox. Any amusement derived from playing in the sandbox, e.g., from its shape, digging in the sand, and tumbling, is incidental or secondary to its utility of providing a play environment and keeping the sand in one area on the playground. Thus, a sandbox, in its entirety, is not a toy “designed and used principally for amusement” and cannot be classifiable under heading 9503, HTSUS.

Heading 9506, HTSUS, in pertinent part, provides for articles and equipment for outdoor games, not specified elsewhere in the chapter. This describes certain outdoor playground equipment and games. Sandboxes are specifically designed for outdoor playground use and therefore fit within the scope of the heading.

EN 95.06(B), in pertinent part, provides that “[t]his heading covers:

Requisites for other sports and outdoor games (other than toys presented in sets, or separately, of heading 95.03) . . .[.]” . . .

Equipment of a kind used in children’s playgrounds (e.g., swings, slides, see-saws and giant strides).”

EN 95.06 (B)(12) describes specific examples of equipment of a kind used in children’s playgrounds, including swings, slides, and see-saws. This sandbox is made of plastic; sturdy enough to hold 300 pounds of sand. It is also made to be stored out-of-doors in all kinds of weather. It has rounded corners and surfaces designed for child safety. Sandboxes, and the swings, slides, and see-saws described in EN 95.06 (B)(12), all provide outdoor activity bases on children’s playgrounds that are similar in nature. Thus, the sandbox is specifically described under heading 9506, HTSUS, as articles and equipment for outdoor games.

Note 3, Chapter 95, HTSUS, provides that subject to Note 1, Chapter 95, “parts and accessories which are suitable for use solely or principally with articles of this chapter are to be classified with those articles.” General ENs to Chapter 95, HTSUS, provide, in pertinent part, that “[e]ach of the headings of this Chapter also covers identifiable parts and accessories of articles of this Chapter which are suitable for use solely or principally therewith, and provided they are not articles excluded by Note 1 to this Chapter.” (Emphasis in the original). Sandbox covers are not excluded by Note 1 to Chapter 95, HTSUS.

The United States Court of Appeals for the Federal Circuit has held that canopies solely dedicated for use with child safety seats, and not designed or sold to be used independently, were properly classified as “parts” of the car safety seats (Bauerhin

Technologies Ltd. Partnership v. United States, 110 F.3d 774 (Fed. Cir. 1997)). Like the safety seat canopies in Bauerhin, the subject sandbox covers are solely dedicated for use with LTC sandboxes, specifically designed to be securely attached to the tops of the sandbox’s four poles or to the sides of the box. Similarly, the subject cover is not designed or sold to be used independently.

Thus, the sandbox cover is classifiable under heading 9506, HTSUS, which provides for, in pertinent part, “[a]rticles and equipment for . . . outdoor games, not specified or included elsewhere in this chapter; . . .; parts and accessories thereof[.]” Having established that the subject merchandise satisfies the terms provided in heading 9506, HTSUS, at GRI 1, consideration of any other headings is precluded.

Our determination is supported by New York Ruling (NY) 895598, dated March 28, 1994, where Customs determined that “equipment principally designed for use by children in an outdoor playground activity is classified for tariff purposes in Heading 9506, HTSUS[.]”

HOLDING:

Based on the foregoing findings, at GRI 1, the subject sandbox cover, model #682570000, is classifiable in subheading 9506.99.60, HTSUS, which provides for “[a]rticles 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: Other: Other[.]”

EFFECT ON OTHER RULINGS:

HQ 961120, dated October 14, 1998, is revoked. In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.

Sincerely,

Myles B. Harmon, Director

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