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HQ 966929




March 23, 2004

CLA-2 RR:CR:GC 966929 NSH

CATEGORY: CLASSIFICATION

TARIFF NO.: 6307.90.98

Port Director

40 S. Gay Street
Baltimore, MD 21202

RE: Protest 1303-03-100257; Floating pool lounger

Dear Port Director:

This is our decision on Protest 1303-03-100257, filed on behalf of Big Bang Products, LLC, against your classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of a floating pool lounger. The entries under protest were liquidated on June 20, 2003, July 18, 2003 and July 25, 2003, respectively, under subheading 6307.90.98, HTSUS, and this protest was timely filed on September 15, 2003.

FACTS:

The subject merchandise, identified as a floating pool lounger, is a steel-framed floating mattress of nylon and nylon mesh construction, measuring 66 inches by 40 inches. The perimeter of the item, as well as a head pillow, are inflatable. Product information provided by the Protestant indicates that the nylon mesh construction of the lounger’s center allows water to seep through, cooling the user while keeping him/her afloat.

Protestant claims classification under subheading 9506.29.00, HTSUS.

ISSUE:

What is the classification under the HTSUS of the floating pool lounger?

LAW AND ANALYSIS:

Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes and, provided such headings or notes do not otherwise require, according to the remaining GRIs.

The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff at the international level. The ENs, although neither dispositive or legally binding, facilitate classification by providing 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.

The HTSUS provisions under consideration are as follows:

Other made up articles, including dress patterns:

Other:

Other:

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:

Water skis, surf boards, sailboards and other watersport equipment; parts and accessories thereof:

9506.29.00 Other

The article at issue, a floating pool lounger, is a mattress of nylon and nylon mesh. The perimeter of the lounger, as well as a head pillow incorporated into the mattress, are inflatable. At liquidation, the floating pool lounger was classified under subheading 6307.90.98, HTSUS. Protestant claims classification under subheading 9506.29.00, HTSUS.

EN 95.06 provides, in pertinent part:

This heading covers:

Requisites for other sports and outdoor games , e.g.:

Water-skis, surf-boards, sailboards and other water-sport equipment, such as diving stages (platforms), chutes, divers’ flippers and respiratory masks of a kind used without oxygen or compressed air bottles, and simple underwater breathing tubes (generally known as “snorkels”) for swimmers or divers. [Emphasis in original.]

In HQ 965956, dated January 22, 2003, Customs addressed heading 9506, HTSUS. Customs held that the exemplars listed in EN 95.06 were all related to equipment essential for sporting and athletic activities, i.e. equipment essential to the play of a game, sport or athletic activity or else equipment designed for use by the player in the training, practice and conduct of one of these activities. As such, the “Easy Spring Lounge” at issue therein, which was not designed for sporting or athletic activities, but as a float to be used in ponds and lakes, was not classified under heading 9506, HTSUS. Rather, it was classified under heading 6307, HTSUS.

Protestant cites to NY D83793, dated October 28, 1998, as evidence that Customs should classify the instant product under heading 9506, HTSUS. In that case, the item, a foam board measuring thirteen inches in length by six inches in width, was designed for use in swim training as well as physical recreation. Therefore, it was classified under heading 9506, HTSUS, because it was similar to the exemplars set forth in EN 95.06. See also NY D85049, dated December 14, 1998, wherein Customs classified a kickboard made of soft foam under heading 9506, HTSUS, holding that its purpose was as a learning and training aid for beginning swimmers ages four to eight. However, we note that those items classified under heading 9506, HTSUS, differ substantially from the instant product.

The floating pool lounger at issue is not intended for use in connection with any sporting or athletic activity as are the items set forth in EN 95.06. Rather, its purpose is as a lounging device for relaxing in the water and not for any type of physical activity. It is therefore not similar to the exemplars set forth in the EN and, as such, it is not classified under heading 9506, HTSUS.

EN 63.07 provides, in pertinent part:

This heading covers made up articles of any textile material which are not included more specifically in other headings of Section XI or elsewhere in the Nomenclature.

It includes, in particular:

Pneumatic cushions (excluding camping goods of heading 63.06). [Emphasis in original.]

We note initially that EN 63.07 specifically refers to pneumatic cushions, i.e. cushions filled with air, such as the floating pool lounger at issue. We further note that the instant floating pool lounger is not of the type used as camping goods and thereby not subject to the ENs exclusion. Rather, it is substantially similar in its construction to the pool lounge previously discussed in HQ 965956, which was classified under subheading 6307.90.98, HTSUS. Finally, Customs has previously classified items similar to the one at issue under subheading 6307.90.98, HTSUS. See NY I89531, dated January 17, 2003, NY 812445, dated July 18, 1995 and HQ 083457, dated November 24, 1989. In view of the foregoing, the floating pool lounger is classified under subheading 6307.90.98, HTSUS, as “Other made up articles, including dress articles: Other: Other: Other.”

HOLDING:

The floating pool lounger is classified under subheading 6307.90.98, HTSUS, as “Other made up articles, including dress patterns: Other: Other: Other.”

You are instructed to DENY the protest.

In accordance with the Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Director
Commercial Rulings Division

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