CLA-2 OT:RR:CTF:TCM H145739 TNA
Port Director, Norfolk Service Port
U.S. Customs and Border Protection
101 E. Main Street Norfolk, VA 23510
Attn: Kenneth Jones, Import Specialist
Re: Application for Further Review of Protest No: 1401-10-100160; Inflatable Pool Floats
Dear Port Director:
The following is our decision regarding the Application for Further Review (“AFR”) of Protest No. 1401-10-100160, timely filed on June 8, 2010, on behalf of Swimways Corporation (“Swimways” or “Protestant”). The AFR concerns the classification of inflatable swimming pool floats, chairs and lounges under the Harmonized Tariff Schedule of the United States (“HTSUS”). In coming to our decision, we have considered Protestant’s supplemental submission dated May 24, 2011, and arguments made to members of my staff at a meeting at U.S. Customs and Border Protection’s (“CBP”) headquarters on November 8, 2012.
FACTS:
The subject merchandise consists of several varieties of inflatable swimming pool floats, chairs and lounges for infants, children and adults. The varieties at issue are the Baby Spring Float (Item #11608); Spring Float Cool Hawaii (Item #13013); Spring Float Photo Prints (Item #13027); Spring Float Beach Party with Canopy (Item #13067); Spring Float Papasan (Item #13055); Spring Float SunSeat (Item #13017); Spring Float Recliner (Item #13018); Spring Float Recliner with Canopy (Item #13022); Spring Float Lounge (Item #13004); Spring Float Kid’s Boat (Item # 25084); Baby Spring Float Activity Center (Item # 11601); and Baby Spring Float Sun Canopy (Item #11649). The merchandise, once inflated, is designed to float in a pool.
The merchandise is all similarly constructed. Each of the Spring Float inflatable pool floats consists of one or two outer rings of woven polyester fabric containing an inflatable plastic ring, or tubing, inside. This fabric ring also houses a collapsible metal frame. Depending on the model, the inflatable plastic tubing is either round or oval-shaped. Some models contain an inflatable pillow, head rest or back rest, depending on whether the specific model is described as a “lounge,” a “recliner,” or a “seat.” Nylon mesh fabric is stretched across the center opening in the circular or oval pool floats so that the user can lie across or sit on the floats and be supported once they are inflated. One variation in this design is in the Baby Spring Float, which has two openings in the textile fabric across the bottom so that an infant’s legs can pass through it such that the baby will be supported by the float while sitting in an upright position with his legs in the water.
All models of the subject merchandise are imported in a carrying bag that provides a more convenient way to transport them. This round bag is made up of plastic on one side and an open textile mesh on the other. It contains a zipper and a textile shoulder strap with which to carry the bag.
Samples of the various models of the subject merchandise were received and examined by this office. Protestant also submitted supplemental information on May 24, 2011, detailing the cost, value, and weight of the various components of the subject merchandise. The cost of the textile component, while it differs for each model, is less than fifty percent for each of the models at issue. The weight of the textile component is much smaller than the weight of the plastic component.
The subject merchandise was entered between February 18, 2009 and June 21, 2009 under subheading 3926.90.75, HTSUS, which provides for: “Other articles of plastics and articles of other materials of headings 3901 to 3914: Other: Pneumatic mattresses and other inflatable articles, not elsewhere specified or included.” The port, citing to Headquarters Ruling (“HQ”) 965956, dated January 22, 2003, liquidated the merchandise between January 4, 2010 and May 7, 2010 in subheading 6307.90.98, HTSUS, as “Other made up articles, including dress patterns: Other: Other: Other.” The importer filed this protest and AFR on June 8, 2010 claiming classification as entered, or, in the alternative, in heading 9506, HTSUS, 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.”
ISSUE:
Whether the subject inflatable pool floats are classified in heading 3926, HTSUS, as articles of plastic, in heading 6307, HTSUS, as other made up articles of textile, or in heading 9506, HTSUS, as sports equipment for water sports, or as parts or accessories of a swimming or wading pool.
LAW AND ANALYSIS:
Initially, we note that this matter is protestable under 19 U.S.C. §1514(a)(2) as a decision on classification. The protest was timely filed, within 180 days of liquidation of the entries at issue. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)).
Further Review of Protest No. 1401-10-100160 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(a) and (c) because it is alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee; and involves matters previously ruled upon by the Commissioner of Customs or by his designee or by the Customs courts but facts are alleged or legal arguments presented which were not considered at the time of the original ruling. Specifically, the Protestant argues that the port’s liquidation was inconsistent with HQ 959405, dated September 28, 1998. Protestant also alleges that it raises new facts and legal arguments that were not considered by HQ 965956, dated January 22, 2003, to which the port cited when liquidating the subject merchandise under heading 6307, HTSUS. Specifically, Protestant argues that HQ 965956 did not consider classification under heading 3926, HTSUS, or the marketing and advertising of the subject merchandise.
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes.
GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in their appropriate order.
The HTSUS headings under consideration are the following:
3926 Other articles of plastics and articles of other materials of headings 3901 to 3914:
6307 Other made up articles, including dress patterns:
9506 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:
In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System, which constitute the official interpretation of the HTSUS at the international level, 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. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The EN to heading 3926, HTSUS, states, in pertinent part, the following:
This heading covers articles, not elsewhere specified or included, of plastics (as defined in Note 1 to the Chapter) or of other materials of headings 39.01 to 39.14.
The EN to heading 6307, HTSUS, states, in pertinent part, the following:
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.
The EN to heading 9506, HTSUS, states, in pertinent part, the following:
This heading covers:
(B) Requisites for other sports and outdoor games (other than toys presented in sets, or separately, of heading 95.03), e.g.:…
(2) 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.
The subject inflatable pool floats, chairs, and lounges consist of both textile and plastic components described by different headings. The plastic component is described by heading 3926, HTSUS, which provides for “Other articles of plastics and articles of other materials of headings 3901 to 3914,” and the textile component is described by heading 6307, HTSUS, which provides for “Other made up articles, including dress patterns.” Because no single heading of the HTSUS completely describes the subject merchandise, and the goods are prima facie classifiable in two or more headings, classification must be decided by GRI 3. GRI 3 provides, in pertinent part, that:
When, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:
…
(b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.
(c) When goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.
For purposes of GRI 3(b), EN IX to GRI 3(b) explains, in relevant part, that:
For the purposes of this Rule, composite goods made up of different components shall be taken to mean not only those which the components are attached to each other to form a practically inseparable whole, but also those with separable components, provided these components are adapted to one another and are mutually complementary and that together they form a whole which would not normally be offered for sale in separate parts.
The textile and plastic components are attached to each other to form a practically inseparable whole. Since the subject merchandise is considered a composite good made up of different components, GRI 3(b) requires that classification be based on the material and component that provides the composite good with its essential character.
With respect to the essential character of composite goods, EN (VIII) to GRI 3(b) provides the following guidance:
The factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.
There have been several court decisions on “essential character” for purposes of classification under GRI 3(b). See Conair Corp. v. United States, 29 C.I.T. 888 (2005); Structural Industries v. United States, 427 F. Supp. 2d 1278, 1295-1356 (Ct. Int’l Trade 2005); and Home Depot USA, Inc. v. United States, 427 F. Supp. 2d 1278, 1295-1356 (Ct. Int’l Trade 2006), aff’d 491 F.3d 1334 (Fed. Cir. 2007). “[E]ssential character is that which is indispensable to the structure, core, or condition, of the article, i.e., what it is.” Home Depot USA, Inc. v. United States, 427 F. Supp. 2d at 1293, quoting A.N. Deringer, Inc. v. United States, 66 Cust. Ct. 378, 383 (1971). In particular, in Home Depot USA, Inc. v. United States, the court stated that “[a]n essential character inquiry requires a fact-intensive analysis.” Home Depot USA, Inc. v. United States, 427 F. Supp. 2d 1278, 1284. Therefore, a case-by-case determination on essential character is warranted in this situation.
Protestant argues that classification as liquidated in heading 6307, HTSUS, fails to take into account the subject merchandise’s essential characteristic, which is that it is inflatable. Protestant argues that the essential character of the subject merchandise is imparted by its plastic components- i.e., the inflatable plastic tubing, and that HQ 965956 is not controlling. In support of this argument, Protestant has submitted a breakdown of the components’ weight and cost for each of the models of pool floats at issue in this protest. Because this breakdown shows that the plastic component costs more and weighs more than the textile component, Protestant argues that the plastic components impart the pool floats’ essential character. Furthermore, at the November 8, 2012, meeting, Protestant argued the inflatable plastic tubing enabled the product to be used as a pool float and that the removal of the textile mesh from each model of the subject pool floats would not change the fact that the product could still be used to float in a pool.
Protestant also argues that, much like the “Aqua Chair” classified under heading 3926, HTSUS, in NY N086585, dated December 22, 2009, the value and weight of the subject merchandise’s vinyl components are greater than that of its textile components. Protestant further argues that in view of the merchandise’s physical characteristics, structure and function, HQ 959405 should be controlling, and that the merchandise should be classified in heading 3926, HTSUS, as “pneumatic mattresses and other inflatable articles.”
In HQ 959405, CBP classified a U-Boat II Float Tube, a U-shaped seat with a backrest designed to hold and carry a fisherman and designed for use in still waters like a pond or lake. The product consisted of a main seat air bladder in the shape of the letter “U” and a second air bladder which acted as the backrest. A nylon cover or skin was fitted over the vinyl air bladders to create an inflatable float tube. At the November 8, 2012, meeting, Protestant argued that the textile mesh completed the seat and allowed the user to sit. In HQ 959405, we stated:
it is our view that the essential character is imparted by its vinyl inflatable component. It is this component that furnishes the structure and the support and most of the comfort to the user. The nylon fabric added to the top surface is for decorative and comfort purposes. Without the nylon, the merchandise would still be a float. Accordingly, the float will be classified as though it were composed of plastic.
See HQ 959405. There, CBP classified the merchandise in heading 3926, HTSUS, because its essential character was imparted by the vinyl inflatable component. Protestant argues that the subject merchandise is akin to the U-Boat in that its textile component gives the user a place to sit or recline, but that it is the plastic component that makes the float inflatable, and therefore usable as a float. Thus, Protestant argues that the plastic tubing imparts the essential character of the subject pool floats.
In response, while we acknowledge that the textile component helped form the seat of the U-Boat, it remains the case that the U-Boat’s textile component played much less of a role in the use of the U-Boat than the textile component of the subject merchandise. There, the plastic component predominated, and furnished the structure, support, and most of the comfort to the user. In the present case, by contrast, the textile component furnishes the structure and support and most of the comfort to the user. The textile component plays a significant part in allowing the consumer to float on top of the water. It houses, furnishes, and gives structural support to the inflatable plastic tubing. Furthermore, without the textile component, the subject merchandise would not function as a float because the plastic tubing would not have any structure or support and a user would not be able to lounge on the float.
We acknowledge that it is the plastic tube that, once inflated, allows the subject merchandise to float in a body of water. At the same time, however, the plastic tube is encased by a ring of bright textile that both hides the plastic tube from view and contributes to the colorful appearance of the pool float. Moreover, the center of the pool floats is made of a textile mesh that allows the user to recline on top of the water. This mesh is also brightly-colored and contains designs on it that contribute to the overall appearance of the float. As such, the subject merchandise can be distinguished from the U-Boat of HQ 959405 in that the textile portions of the subject pool floats play as important a role as the plastic tube in allowing a consumer to use the subject merchandise as a float.
In response to Protestant’s argument that a user could remove any model’s textile mesh and still use the subject merchandise as an inflatable object with which to float in a pool, we note that the textile mesh in the center of each pool float is not the only textile component of these floats. To the contrary, the inflatable plastic tube of every model of the subject merchandise is encased in a textile ring. In models with two plastic tubes, there are separate textile rings. These textile rings serve to encase and support the plastic tubes. These textile rings help support the user in the water, even when the plastic tubes are inflated. Thus, even if the subject pool floats could still be used as floats without the middle textile mesh, it is unlikely that they could still be used as such without the textile rings. As a result, both the plastic and the textile components play important roles in the use of the good.
Furthermore, in NY N086585, to which Protestant also cites, CBP classified an inflatable pool float with a plastic air bladder that formed the circumference of a lounger. The bladder was sewn into a nylon mesh material that formed the body of the lounger and was supported by a plastic sheet that ran from one end to the other of the center of the pool lounger. We note that in that case, a plastic sheet supported the weight of the user. In NY N086585, the plastic components predominated by weight and value over the textile components; it also functioned to keep the lounger floating and supported the occupant. In the present case, by contrast, it is a textile sheet that runs from one end of the tube to the other and supports the weight of the user. This difference has an impact on every factor CBP considers in an essential character analysis. As such, because the subject merchandise is different from the merchandise at issue in NY N086585, this ruling is not persuasive.
Applying the essential character analysis to the present case, we have considered factors such as the nature, value, bulk and weight of the components, cost, sophistication, the reasons a consumer would purchase the merchandise, and the role of the constituent material in relation to the use of the goods.
In the present case, with respect to the breakdown of the cost, weight and bulk that Protestant has submitted, the cost of the textile component, while it differs for each model, is only slightly under fifty percent for each of the models at issue. Thus, although the cost differential of the components favors the plastic, it is only by a small margin. The weight of the textile component is much smaller than the weight of the plastic component; thus, the plastic substantially outweighs the textile component in each pool float, and this factor favors finding that the plastic is the essential character. Overall, therefore, only one factor clearly weighs in favor of finding that the plastic tube imparts the essential character of the subject floats, and that is the weight of each component. The cost of each component only slightly favors the plastic component. However, the textile component furnishes structure, support, and comfort to the user. Without the textile component, the merchandise would not be a float. The consumer purchases the merchandise to use it as a float. Based on the significance of the textile fabric, both woven and mesh, in terms of bulk, weight, and value, and the significance of the fabric in relation to the use of the item, neither the plastic nor the textile fabric imparts the essential character. See, e.g., NY N069035. Because neither the plastic nor the textile imparts the essential character of the subject merchandise, we resort to GRI 3(c) determine classification. GRI 3(c) states:
When, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows: …
(c) When goods cannot be classified by reference to 3(a) or 3(b), they
shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.
Because GRI 3(c) requires classification in the heading that appears numerically last in the HTSUS, the subject pool floats are classified in heading 6307, HTSUS, which provides for “Other made up articles, including dress patterns.” Both the classification and analysis pursuant to GRI 3(c) is consistent with prior rulings that have classified identical merchandise from the same importer in heading 6307, HTSUS. See, e.g., HQ 965956, dated January 22, 2003; NY L87963, dated October 19, 2005; NY H88842, dated February 28, 2002.
With respect to the subject Baby Spring Float in particular, Protestant argues, in the alternative, for classification in heading 9506, HTSUS, as an article for sports because the Baby Spring Float is designed and marketed as a training aid in teaching infants how to swim. In response, we note that while heading 9506, HTSUS, includes a large number of items, the Baby Spring Float is neither specifically covered by this heading nor similar to the articles that are so covered. See EN 95.06. The articles listed in the EN, for example, are the requisites or gear needed to play sports and athletics, i.e., the equipment essential to the play of the game, sport or athletic activity or the equipment designed for use by the player in the training, practice, and conduct of those sporting activities. The Baby Spring Float is not a requisite piece of sports equipment within the scope of heading 9506, HTSUS.
Furthermore, the float’s packaging, which Protestant cites, indicates that it is simply a device to introduce infants to the water rather than to teach them how to swim. The float holds the infant in an upright position, and does not allow the child to recline, lie down, or move much beyond the position in which he sits in the Baby Spring Float. By contrast, the merchandise at issue in the rulings to which Protestant cites, such as water wings, simply adds buoyancy while allowing the user to move in such a way that would simulate or practice swimming. See, e.g., NY N042124, dated November 5, 2008; NY N080715, dated November 3, 2009; NY A82398, dated April 17, 1996. As such, it cannot be said that the Baby Spring Float will be used in the performance or achievement of athletic water activities similar to that described in EN 95.06 or as a water sport training or practice device. As a result, the Baby Spring Float is not classifiable in heading 9506, HTSUS. This logic is consistent with prior CBP rulings. See, e.g., HQ 965956; NY N042676.
As a second alternative, Protestant argues for classification of the Baby Spring Float in heading 9506, HTSUS, as a part or accessory of a swimming pool or wading pool. Following a line of court cases that defined the term “part,” CBP has consistently held that a “part” is “an integral, constituent component of another article, necessary to the completion of the article with which it is used, and which enables that article to function in the manner for which it was designed.” See Bauerhin Technologies Limited Partnership, & John V. Carr & Son, Inc. v. United States, 110 F.3d 774 (Fed. Cir. 1997); United States v. Willoughby Camera Stores, Inc., 21 C.C.P.A. 322 (1933); United States v. Pompeo, 43 C.C.P.A. 9 (1955). See also HQ 966450, dated October 27, 2003; HQ 964886, dated January 29, 2002; HQ 962735, dated November 22, 1999; and HQ 961660, dated January 22, 1999.
Furthermore, the term “accessory” has been defined as something that “must relate directly to the thing accessorized. See Rollerblade, Inc. v. United States, 116 F.Supp. 2d 1247 (CIT 2000), aff’d, 282 F.3d 1349 (Fed. Cir. 2002). In subsequent rulings, CBP has added that an accessory is generally an article that is not necessary to enable the goods with which it is used to fulfill their intended function. An accessory must be identifiable as being intended solely or principally for use with a specific article. Accessories are of secondary or subordinate importance, not essential in and of themselves. They must, however, somehow contribute to the effectiveness of the principal article (e.g., facilitate the use or handling of the principal article, widen the range of its uses, or improve its operation). See, e.g., HQ H068286, dated November 19, 2010; HQ H021138, dated November 10, 2008; HQ 966736, dated November 17, 2003; HQ 966354, dated June 18, 2003.
In light of these definitions, we find that the Baby Spring Float is neither a part nor an accessory of a swimming pool or a wading pool. The Baby Spring Float cannot be said to be an integral part of a pool, such that a pool could not function without it. It would be equally incorrect to say that the Baby Spring Float contributes to the effectiveness of a pool, facilitates its use, improves its operation or widens its range of uses. As a result, the Baby Spring Float cannot be classified in heading 9506, HTSUS, as a part or accessory of a swimming pool or wading pool. Therefore, it is classified in heading 6307, HTSUS, with the remaining merchandise at issue.
Lastly, we note that the subject pool floats are imported in bags with handles that are also made of plastic and textile. The bags are specifically fitted to carry the floats. They are entered and sold with the swimming pool floats and is intended to be reused. GRI 5 states, in pertinent part, the following:
In addition to the foregoing provisions, the following rules shall apply in respect of the goods referred to therein:
Camera cases, musical instrument cases, gun cases, drawing instrument cases, necklace cases and similar containers, specially shaped or fitted to contain a specific article or set of articles, suitable for long-term use and entered with the articles for which they are intended, shall be classified with such articles when of a kind normally sold therewith. This rule does not, however, apply to containers which give the whole its essential character…
The bags comport with the requirements set forth in GRI 5(a). As a result, they are classified with the pool floats in subheading 6307.90.98, HTSUS.
HOLDING:
By application of GRI 3(c), the subject pool floats are classified in heading 6307, HTSUS, and specifically in subheading 6307.90.98, HTSUS, which provides for “Other made up articles, including dress patterns: Other: Other: Other.” The column one, general rate of duty is 7% ad valorem.
By application of GRI 5(a), the bags with which the subject pool floats are imported are classified with the pool floats in subheading 6307.90.98, HTSUS.
You are instructed to DENY the protest.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office International Trade, 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 and Trade Facilitation Division