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HQ W967654




May 3, 2007

CLA-2 OT:RR:CTF:TCM 967654 ASM

CATEGORY: CLASSIFICATION

TARIFF NO.: 9506.99.6080

William J. Maloney, Esq.
Rode & Qualey
Attorneys at Law
55 West 39th Street
New York, NY 10018

RE: Request for reconsideration of NY K87043; Classification of “Jump ‘n Slide”

Dear Mr. Maloney:

This is in response to a letter you submitted, dated March 31, 2005, on behalf of the “Little Tikes”® company, concerning their request for reconsideration of Customs and Border Protection (CBP) New York Ruling Letter (NY) K87043, dated June 28, 2004, involving the classification of the “Jump ‘n Slide” under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). No samples were submitted to this office for examination. However, we have received photographs, catalogs, and marketing information on the “Jump ‘n Slide” which provide sufficient information upon which to issue a decision in this ruling. In addition, a meeting was held with you and representatives from the “Little Tikes”® company on September 26, 2006, and we received an additional written submission dated November 9, 2006, which has been reviewed by this office.

FACTS:

The “Little Tikes”® “Jump ‘n Slide” is an inflatable gym surrounded on three sides by plastic mesh walls which are attached to red inflatable columns and yellow inflatable supports. There is an attached inflatable slide. The entire structure measures 9 x 12 x 6 feet. The “Little Tikes”® catalog describes the “Jump ‘n Slide” as having tall protective walls which “surround a large jumping area, including a big slide with side rails.” The catalog goes on to say that “a heavy-duty air blower provides continuous inflation of the inflatable structure . . . that is intended for outdoor domestic family use only and not for use in public areas or for use as a rental.”

In NY K87043, the subject article was classified in subheading 9506.99.6080, HTSUSA, which provides for “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; . . .: Other: Other: Other, Other”. You disagree with this classification and claim that the article is classified as a toy in subheading 9503.90.0080, HTSUSA, which provides for “Other toys; reduced-size (‘scale’) models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof: Other, Other.”

In the 2007 HTSUSA, this provision is contained at subheading 9503.00.00, which now provides for “Tricycles, scooters, pedal cars and similar wheeled toys; dolls’ carriages; dolls, other toys; reduced-scale (‘scale’) models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof”. At the ten-digit level, subheading 9503.00.0010, HTSUSA, provides for “Inflatable toy balls, balloons and punchballs, of rubber” and the residual provision is at subheading 9503.00.0080, HTSUSA.

ISSUE:

What is the proper classification for the merchandise?

LAW AND ANALYSIS:

Classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined 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 may then be applied. The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide 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, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

In your submission dated November 9, 2006, you forwarded a notice issued by the U.S. Consumer Product Safety Commission (CPSC), which referred to certain home-use inflatable articles containing electric motors powered by a current of 120-volt branch circuits as “toys”. In characterizing certain inflatable articles (similar to the article at issue) as “toys”, we recognize that the CPSC is governing the safety of children in the use of merchandise that has been affixed with a powerful electrical current. While the CPSC may view this item as a toy, for tariff purposes, the article may still be classifiable as outdoor play equipment for children in heading 9506, HTSUSA. Although other agency decisions may be informative, these decisions are not binding on CBP and we do not need to consider other agency ‘s statutes, regulations, and administrative interpretations in defining tariff terms. See Sabritas S.A. de C.V. v. United States, 998 F. Supp. 1123 (CIT 1998), Headquarters Ruling Letter (HQ) 966521, dated September 10, 2003, HQ 964143, dated October 5, 2001, HQ 963835, dated October 17, 2000, HQ 957550, dated May 23, 1995, and HQ 952995, dated March 10, 1993.

Heading 9503, HTSUSA, currently provides for "Tricycles, scooters, pedal cars and similar wheeled toys; dolls’ carriages; dolls, other toys; reduced-scale (‘scale’) models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof”. At the ten-digit level, subheading 9503.00.0010, HTSUSA, provides for “Inflatable toy balls, balloons and punchballs, of rubber” and the residual provision is contained at subheading 9503.00.0080, HTSUSA. The ENs to heading 9503 further indicate that the heading covers toy sports equipment, and that certain toys (e.g., electric irons, sewing machines, musical instruments, etc.) may be capable of a limited "use," but they are generally distinguishable by their size and limited capacity from real sewing machines, etc. Although the term “toy” is not defined in the tariff, the ENs to Chapter 95 indicate that a toy is an article designed for the amusement of children or adults. Thus, in order to be classified as a “toy” of Chapter 95, HTSUSA, it has long been CBP’s position that a toy is essentially a plaything, something that is intended and designed for the amusement of children or adults. In order to be considered amusing, the toy must be designed and used principally for amusement and should not serve a utilitarian purpose. See HQ 964243, dated September 18, 2001, in which a stuffed pillow-like article designed and shaped to resemble a flower was found to be aesthetically pleasing but not amusing or entertaining.

Heading 9506, HTSUSA, provides, in pertinent part, for “Articles and equipment for general physical exercise . . . outdoor games, not specified or included elsewhere in this chapter.” In part, EN 95.06(B), states that the heading covers:

Requisites for other sports and outdoor games (other than toys presented in sets, or separately, of heading 95.03), e.g.:

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

The subject article has a slide and trampoline style component designed for active outdoor play and exercise. EN 95.06(B)(12), specifically identifies “slides” as classifiable in the heading. The “Jump ‘n Slide’s” trampoline component is similar in nature to the “swings” and “see-saws” which are specifically named in EN 95.06(B)(12), in that these components all provide active outdoor recreation for children. Furthermore, the size of the “Jump ‘n Slide” clearly limits its use as playground equipment for children. In addition, the “Jump ‘n Slide” is made of reinforced plastic, which is sturdy enough to withstand the active recreation of children and is only designed to be used out-of-doors. In New York Ruling (NY) R01333, dated January 26, 2005, CBP classified an inflatable trampoline of 100 percent rubberized PVC (electric air pump and repair kit included) and designed to be used by children in a backyard setting in subheading 9506.99.6080, HTSUSA. In this ruling CBP further noted that classification of such an article as a “toy” of heading 9503, HTSUSA, is misplaced because the heading only includes articles principally used as playthings of a frivolous amusement nature.

We do not agree with your assertion that the subject merchandise is similar to the “playhouses”, “play or slumber tents”, and “vehicle tents” that were classifiable as toys in Ero Industries, Inc. v. United States, 118 F. Supp. 2d 1356 (2000). The “Jump ‘n Slide” is a utilitarian article of outdoor playground equipment. In fact, it is promoted, advertised, and sold for outdoor use and cannot be safely used indoors. Any amusement derived from playing on the “Jump ‘n Slide” is secondary to the product’s utility of providing an outdoor playground environment for children. In addition, you reference NY 806703, dated February 10, 1995, in support of your contention that the “Jump ‘n Slide” is classifiable as a “toy” in heading 9503, HTSUSA. Although NY 806703 classified small hand puppets as “toys” of heading 9503, HTSUSA, this merchandise is clearly distinguishable from the “Jump n’ Slide”. In NY 806703, the hand puppets were designed for indoor use to be used as bath mitts for the amusement of young children which is distinctly different from an active outdoor playground environment such as the “Jump n’ Slide”.

We also note that you have cited HQ 961142, dated January 30, 1998, wherein CBP classified a nylon braided jump rope with plastic handles as a “toy” in subheading 9503.90.0045, HTSUSA. In comparing the article classified in HQ 961142 to the merchandise now at issue, it is important to note that EN 95.03 specifically includes “skipping ropes”, other than those of heading 9504 or 9506, as classifiable in the heading. As such, in HQ 961142 it was necessary to make a distinction between the three different types of jump ropes, i.e., the “toy” jump ropes of heading 9503, HTSUSA, and articles of play equipment that would be more properly classified in heading 9504 or 9506, HTSUSA. In contrast, EN 95.06 specifically provides for active play equipment like the “Jump ‘n Slide, by identifying as exemplars “slides”, “see-saws”, and “swings”, while EN 95.03 does not provide a single exemplar, which would indicate that the “Jump ‘n Slide” should be classifiable in heading 9503, HTSUSA.

In HQ 950758, dated January 3, 1992, CBP classified a miniature basketball game consisting of a metal basketball hoop with mesh net, backboard, two-part metal tubular post standing approximately 6 feet tall and rising vertically from an x-shaped floor stand as an article of equipment under subheading 9506.99.6080, HTSUSA. In making this classification decision, it was noted in HQ 950758 that the miniature basketball game was not flimsily or delicately constructed and could function as a recreational article to provide outdoor physical activity for children and for use in children’s playgrounds. Similarly, the “Jump ‘n Slide” is a well-constructed article designed for use as a children’s outdoor playground. In fact, the promotional literature for the “Jump n’ Slide” identifies the article as a huge inflatable gym (measuring 9 feet x 12 feet x 6 feet), which is made of puncture-resistant material. These pictures advertise that the “Jump ‘n Slide” is for outdoor use and that it comes with stakes that are designed to anchor the equipment firmly to the ground. It is also noted that the “Jump ‘n Slide” comes with a heavy-duty blower and is for outdoor use only. Clearly, the “Jump ‘n Slide” can only be used as an outdoor playground for children and such equipment is specifically enumerated in the EN’s to heading 9506, HTSUSA, as “ . . . equipment of a kind used in children’s playgrounds (e.g., swings, slides, and see-saws)”.

At this time, we are reviewing CBP rulings, including the ones that you have cited in your submission, i.e., PD E89793, dated December 10, 1999, NY R00606, dated July 28, 2004, and NY L80206, dated October 21, 2004, to determine if they are consistent with the holding in this ruling.

In view of the foregoing, it is our determination that the subject “Jump ‘n Slide” is not a “toy” within the meaning of heading 9503, HTSUSA, but is properly classifiable in subheading 9506.99, HTSUSA, as an article to be used as a children’s outdoor playground. Thus, it is our determination that NY K87043, dated June 28, 2004, correctly classified the “Jump n’ Slide”, in subheading 9506.99.6080, HTSUSA.

HOLDING:

The subject merchandise, identified as the “Jump ‘n Slide”, is correctly classified in subheading 9506.99.6080, HTSUSA, which provides for, “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, Other.” The general column one duty rate is 4 percent ad valorem.

Sincerely,


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