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HQ 966140





March 28, 2003

CLA-2 RR:CR:GC 966140 BJB

CATEGORY: CLASSIFICATION

TARIFF NO.: 9506.99.60

Ms. Hope Bailey
Schenker, Inc.
1300 Diamond Springs Road
Virginia Beach, VA 23455

RE: Revocation of HQ NY I81451; Sandbox cover

Dear Ms. Bailey:

This is in reference to New York Ruling Letter (NY) I81451, issued to you on behalf of The Little Tikes Company (LTC), on May 22, 2002, by the Director, Customs National Commodity Specialist Division, New York, New York, concerning the classification of a “sandbox cover,” under the Harmonized Tariff Schedule of the United States (HTSUS).

In NY I81451, it was determined that a sandbox cover was classifiable under subheading 6307.90.98, HTSUS (2002), as “[o]ther made up articles, including dress patterns: Other: Other[.]”

We have reviewed the ruling in NY I81451, and have determined the classification to be incorrect. This ruling revokes NY I81451 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 NY I81451, dated May 22, 2002, and to revoke the tariff treatment pertaining to the tariff classification of a “sandbox cover.”

FACTS:

The merchandise was identified as a cover of man-made textile panels sewn together, and designed, for a sandbox (sandbox cover), measuring approximately 50-inches by 50-inches square. The edges of the cover are hemmed with an elastic fabric sewn into each corner and textile straps attached to one side of the cover to secure it to the sandbox. ISSUE:

Whether the sandbox cover is classifiable under heading 6307, HTSUS, as “[o]ther made up articles[;]” 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 a sandbox for which the subject cover is designed is classifiable as an “other toy” or as an “outdoor game,” is not prima facie clear.

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 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. Much of the literature available about LTC sandboxes on the internet provides that they are sturdy and geared for playground use. LTC sandbox, model #4850, for example (not subject of this ruling), is covered by a smaller 40-inch by 42-inch cover but sturdy enough to hold 300 pounds of sand, and to be stored out-of-doors in all kinds of weather. Generally, LTC sandboxes have 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, sandboxes are 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 cover is solely dedicated for use with an LTC sandbox, specifically designed to be fitted to the corners of the base, and attached to at least one side, of the box. Similarly, the subject cover is not designed or sold to be used independently.

Thus, this 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 and we conclude that NY I81451 was in error.

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, 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:

NY I81451, dated May 22, 2002, 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
Commercial Rulings Division

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