HQ H270403
CLA-2 OT:RR:CTF:CPM H270403 MAB
Port Director, New York/Newark Service Port
U.S. Customs and Border Protection
1100 Raymond Boulevard
Newark, NJ 07102
ATTN: Patrick Caldarone, Import Specialist
Re: Application for Further Review of Protest No.: 4601-15-101235; Skywalker Trampolines
Dear Port Director:
The following is our decision regarding the Application for Further Review (AFR) of Protest No. 4601-15-101235, timely filed on August 12, 2015. The Protest and AFR were filed on behalf of BJ’s Wholesale Club, Inc. (“Protestant”), contesting the classification and liquidation by Customs and Border Protection (CBP) of two entries of trampolines under heading 9506 of the Harmonized Tariff Schedule of the United States (HTSUS). This decision takes into consideration the arguments presented by counsel, on behalf of its client, in a meeting with my staff on October 3, 2017, and a supplemental submission dated October 11, 2017.
The instant trampolines were entered in two entries on April 8, 2014 and April 15, 2014, in heading 9506, HTSUS. The subject entries were liquidated on February 20, 2015 and February 27, 2015, respectively, in subheading 9506.91.00, HTSUS, as “Articles and equipment for general physical exercise, gymnastics or athletics; parts and accessories thereof.” Protestant filed this Protest and AFR on August 12, 2015, claiming classification in 9503.00.00, HTSUS, as “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.”
FACTS:
The subject merchandise consists of recreational land-based trampolines and are described as “SKU 720442 Skywalker 16’ Oval Trampolines with Safety Enclosure and Bonus Game” (Skywalker Trampolines). They are designed for domestic backyard use and to provide “many years of fun and fitness.” The trampolines are 16’ x 14’ in size, oval shaped and made with ultraviolet-resistant polyvinyl chloride (PVC) materials. They have 96 thick gauge rust-resistant springs to provide bounce. They also include a “Triple Toss Game” with six (6) sand bags for a jumper to throw at a target.
The instant trampolines are not recommended for use by children under six (6) years of age or by persons weighing more than 200 pounds. The use instructions recommend that only one person at a time jump and with mature, knowledgeable supervision. Additionally, they advise jumpers to learn fundamental bounces and body positions thoroughly before trying more advanced skills and to contact a certified trampoline instructor for information concerning skills training. They also caution jumpers against extended bouncing which may cause fatigue and increase the risk of injury.
To increase safety for users, the Skywalker trampolines include a woven mesh netting enclosure. They feature a heavy-gauge reinforced galvanized steel frame, a patented “Stay-Put” enclosure to eliminate gaps between the jumping mat and the enclosure net, and welded T-sockets to eliminate frame twisting. Together these features increase the structural integrity of the trampolines. In the event of high wind, however, the use instructions advise to secure them to the ground in a sheltered location using ropes and stakes (not provided).
ISSUE:
Whether the subject trampolines are classified as “other toys” in heading 9503, HTSUS, or as “articles and equipment for general physical exercise” in heading 9506, HTSUS.
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. (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. 4601-15-101235 is properly warranted pursuant to 19 C.F.R. §174.24(a) as the decision protested is alleged to be inconsistent with rulings of the Commissioner of Customs or his designee on substantially similar merchandise. Specifically, the Protestant argues that the Port’s liquidation of the subject entries contradicts Headquarters Ruling Letter HQ H097740 (March 29, 2011).
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. 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 provisions under consideration are the following:
9503 Tricycles, scooters, pedal cars and similar wheeled toys; dolls’ carriages; dolls, other toys reduced size (“scale”) models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof
9503.00.00 Other:
* * * * *
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:
Other:
9506.91.00 Articles and equipment for general physical exercise gymnastics or athletics; parts and accessories thereof
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System (HS) at the international level. While not legally binding, the ENs provide a commentary on the scope of each heading of the HS and are thus useful in ascertaining the proper classification of merchandise. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
Although the term "toy" is not specifically defined in the tariff, the ENs to chapter 95, HTSUS, state the following:
This Chapter covers toys of all kinds whether designed for the amusement of children or adults. It also includes equipment for indoor or outdoor games, appliances and apparatus for sports, gymnastics or athletics, certain requisites for fishing, hunting or shooting, and roundabouts and other fairground amusements.
The relevant ENs for heading 9503 are the following:
(D) Other toys.
This group covers toys intended essentially for the amusement of persons (children or adults). However, toys which, on account of their design, shape or constituent material, are identifiable as intended exclusively for animals, e.g., pets, do not fall in this heading, but are classified in their own appropriate heading. This groups includes:
* * * * *
(ix) Toy sports equipment, whether or not in sets (e.g., gold sets, tennis sets, archery sets, billiard sets; baseball bats, cricket bats, hockey sticks).
The relevant ENs for heading 9506 are the following:
(A) Articles and equipment for general physical exercise, gymnastics or athletics, e.g., :
Trapeze bars and rings; horizontal and parallel bars; balance beams, vaulting horses; pommel horses; spring boards; climbing ropes and ladders; wall bars; Indian clubs; dumb bells and bar bells; medicine balls; rowing, cycling and other exercising apparatus; chest expanders; hand grips; starting blocks; hurdles; jumping stands and standards; vaulting poles; landing pit pads; javelins, discuses, throwing hammers and putting shots; punch balls (speed bags) and punch bags (punching bags); boxing or wrestling rings; assault course climbing walls.
(B) Requisites for other sports and outdoor games (other than toys presented in sets, or separately, of heading 95.03), e.g. :
* * * * *
(12) Equipment of a kind used in children’s playgrounds (e.g., swings, slides, see saws and giant strides).
As noted above, Chapter 95 divides “toys” and "equipment for general physical exercise" into two separate headings - 9503, HTSUS, for toys and 9506, HTSUS, for exercise equipment. However, in order to be considered a toy, an article must be principally designed for amusement and not practicality. See, e.g., Streetsurfing LLC v. United States, 11 F. Supp. 3d 1287, 1298 (CIT 2014); Minnetonka Brands, Inc. v. United States, 110 F. Supp. 2d 1020, 1026 (CIT 2000)). Furthermore, if the article consists of a utilitarian feature, it must be incidental to any amusement the item may provide. See Ideal Toy Corp. v. United States, 78 Cust. Ct. 28, 33, C.D. 4688 (1977). Furthermore, classification in a principal use provision “is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use.” Additional U.S. Rule of Interpretation 1(a), HTSUS.
The term trampoline is undefined in the tariff. The courts and CBP construe statutorily undefined terms in accordance with their common and commercial meaning, which is presumed to be the same. See E.M. Chems. v. United States, 920 F.3d 910, 913 (Fed. Cir. 1990). The Oxford Dictionary defines trampolines as: “[a] strong fabric sheet connected by springs to a frame, used as a springboard and landing area in doing acrobatic or gymnastic exercises. Miriam-Webster defines them as: “[a] resilient sheet or web (as of nylon) supported by springs in a metal frame and used as a springboard and landing area in tumbling” and Wikipedia states: “[a] trampoline is a device consisting of a piece of taut, strong fabric stretched over a steel frame using many coiled springs.”
The instant Skywalker Trampolines meet the common and commercial meaning of the term trampoline. The courts have stated, however, that in order to determine whether an article is included in a particular class or kind of merchandise, we should consider a variety of factors. See United States v. Carborundum Co., 536 F.2d 373, 377 (1976). The Carborundum factors include: (1) the general physical characteristics of the merchandise; (2) the channels, class or kind of trade in which the merchandise moves (where the merchandise is sold); (3) the expectation of the ultimate purchasers; (4) the environment of the sale (i.e., accompanying accessories and marketing); (5) usage, if any, in the same manner as merchandise which defines the class; (6) the economic practicality of so using the import; and (7) the recognition in the trade of this use.
Protestant correctly asserts that CBP has classified trampolines under both heading 9503, HTSUS, and heading 9506, HTSUS. As CBP stated in Headquarters Ruling Letter (HQ) 961718 (May 7, 1999), “the obvious classification problem that arises concerns the question of ‘amusement.’ Since all games and athletics utilizing balls provide some amusement, the determination of whether balls should be classified as toys or as ‘equipment for general physical exercise’ will not always be clear.” The ruling states that “articles which provided the user with benefits other than simple amusement would be classified as equipment for general physical exercise.”
Protestant argues that the Skywalker Trampolines are specifically designed and principally used for the amusement of children, i.e., “bouncing and jumping around for fun,” and not for general physical exercise, sports, or outdoor games. Protestant argues that while some trampolines may be used for these purposes, the instant trampolines are not.
Protestant’s assertion, however, is contrary to information found on the Skywalker Trampolines website wherein the manufacturer has posted numerous articles promoting the use of its trampolines for exercising. As recently as August 18, 2017, the manufacturer posted an article entitled, “What Are The Health Benefits Of Jumping On A Trampoline.” This article describes how trampoline jumping “might be the answer to losing those few extra pounds. Jumping is a great cardio exercise that increases your heart rate and gets your blood pumping….bouncing off fat...has proven to be an efficient form of exercise with virtually no harmful side effects.” The article also includes a chart of calories burned jumping on a trampoline by body weight and time, in addition to links to various research studies, e.g., NASA study showing how trampoline jumping is a form of low impact exercise by comparing those who ran on a treadmill to those who jumped on a trampoline. On August 2, 2017, the manufacturer posted an article entitled, “5 Tips To Keep Your Kids Active This Summer,” which encourages both kids and adults to “Bounce Your Way to Health” and exercise by jumping on trampolines. The article boasts that trampoline jumping is a “great way to get your heart rate up, burn calories, improve muscle tone and flexibility, and most importantly IT’S NOT PURE AGONY. It’s actually (dare we say) fun….so head to the backyard with your kids this summer and bounce your way to health!” On May 17, 2017, the manufacturer posted an article entitled, “Why Trampoline Exercises Aren’t Just Child’s Play,” and includes a graphic entitled, “What Happens To Your Body On A Trampoline,” describing the positive health effects that trampoline jumping has upon muscles, joints, lungs, brain, skin and heart.
It is our view that the amusement or “fun” provided by jumping, skipping, twisting, flipping, performing layouts and other moves on the Skywalker Trampolines’ 16’ x 14’ strong fabric jump beds that are connected to heavy-gauge reinforced galvanized steel frames by 96 thick-gauge rust-resistant springs, a patented “Stay-Put” enclosure to eliminate gaps between the jumping mat and the enclosure net, welded T-sockets to eliminate frame twisting, and PVC materials, is incidental to their utilitarian function of providing benefits of general physical exercise or “fitness,” just as the User’s Manual and articles posted on the manufacturer’s website claim. Furthermore, the User Manual also provides an illustrated “Instructional Program and Model Lessons” of fundamental positions of proper jumping on trampolines, e.g., fundamental bounce, knee drop, hand and knee drop, back drop, seat drop, front drop, half turntable, and swivel hips. It also advises that “lesson planning from this point on should be facilitated by contacting a certified trampoline instructor.” In other words, the instant Skywalker Trampolines are clearly used not only for recreational physical exercise, but can serve as sports equipment for budding athletes interested in learning and practicing the basics of competitive trampoline sports. The eight fundamental positions described in the User’s Manual are the same as those used in the international and Olympic sport of trampoline.
The added “Triple Toss Game” that is included with the Skywalker Trampolines, wherein jumpers can throw up to six (6) sand bags at a target while jumping, is contrary to Protestant’s claim that the instant trampolines are neither “outdoor games” nor “a competitive activity involving skill, chance, or endurance on the part of two or more persons who play according to a set of rules, usually for their own amusement or for that of spectators” (citing dictionary.com and NY 813812 (August 23, 1995)). Protestant also overlooks page 12 of the Skywalker Trampoline’s User’s Manual that describes in Lesson 9 of the Instructional Program and Model Lessons how the instant trampolines can be used for outdoor games and competitions.
With their substantial construction and structural integrity, the Skywalker Trampolines are more like those classified in heading 9506, HTSUS, and are similar to the trampolines at issue in New York Ruling Letters (NY) N144678 and R01614.
In NY N144678 (February 14, 2011), CBP classified five (5) trampolines ranging in size from 11’ to 14’, with galvanized steel frames, safety pads constructed of PVC, and some enclosed with safety nets, as exercise equipment in heading 9506, HTSUS. Similarly, in NY R01614 (March 22, 2005), CBP classified a child-sized trampoline with a frame constructed of steel and a material covering the edges made of PVC in heading 9506, HTSUS. These durable materials provide for a sturdy construction and therefore make them suitable for exercise, unlike the trampolines classified as toys in heading 9503, HTSUS. In NY N021006 (January 10, 2008), CBP classified the Little Tikes Bounce House Trampoline Inflatable Toy in heading 9503, HTSUS, explaining that it was an enclosed inflatable play area designed for both outdoor and indoor use and with flimsy construction, and therefore unsuitable for exercise. Likewise, in N012532 (June 29, 2007), CBP found that the Jump Smart Trampoline, a musical trampoline designed for children three (3) to eight (8) years of age weighing 80 pounds or less, was more suitable for amusement.
Protestant compares the instant trampolines to the “Mega Bounce Trampoline” in HQ H097740 (March 29, 2011) which was classified as a toy in heading 9503. The Mega Bounce Trampoline was an inflatable play structure constructed of rubberized PVC, which measured 8’ long x 8’ wide x 5-1/2’ high. An electric air pump and repair kit was included with the product. A review of the Carborundum factors indicated that the item was a toy. However, CBP finds that a review of those same factors indicates a different outcome for the instant Skywalker Trampolines as there are significant differences between them. (Also, not all of these factors are necessarily relevant or determinative in every situation. See HQ H236278 (June 11, 2013)).
General physical characteristics of the merchandise – The Mega Bounce’s inflatable structure was determined to be akin to play tents for use by children indoors or outdoors and the bouncy surface akin to toy sports equipment listed as exemplars of the heading in EN 95.03. Moreover, it doesn’t have any springs or bands to provide the proper propulsion needed to jump high as with traditional trampolines. Conversely, the Skywalker trampolines are sturdily built with heavy-gauge reinforced galvanized steel, 96 thick gauge rust-resistant springs, welded T-sockets to eliminate frame twisting and increase structural integrity, and a patented “Stay-Put” enclosure design to eliminate gaps between the jumping mat and the enclosure net by interlocking at each jump mat V-ring.
They can also be stored outside in all kinds of weather (although doing so may shorten the life of the jump bed, as stated in the User’s Manual). Moreover, the Skywalker’s User’s Manual does not indicate they are toys. Instead, it describes them as not only providing fun but also fitness, in addition to including what can best be described as beginner’s competitive trampoline routine as well as suggestions for competitive games to play. As already described above, it is irrefutable that the manufacturer’s website promotes the use of the Skywalker trampolines for physical exercise. CBP does not consider the Skywalker Trampolines to be similar to the exemplars in EN 95.03.
Protestant emphasizes throughout its submission the different categories of trampolines as recognized by the Consumer Product Safety Commission, the American Society for Testing and Materials, the International Gymnastics Federation, and the European Committee for Standardization (i.e., competitive, institutional, and consumer), which are, consequently, constructed differently. However, these terms or categories – competitive, institutional, and consumer – are not used in the HTSUS. The Skywalker Trampolines function the same as the competitive and institutional trampolines. It is therefore too simplistic to state that all consumer trampolines cannot be classified in heading 9506, HTSUS, as exercise equipment. Certainly, competitive and institutional trampolines are exercise equipment, but this does not mean that recreational outdoor trampolines with large surface areas, relatively high above the ground, with 96 sturdy springs and sold at retail are not exercise equipment. Since the manufacturer itself recognizes the use of Skywalker Trampolines as exercise equipment, we are surprised at Protestant’s claim.
Protestant further states that competitive and institutional trampolines are used almost exclusively indoors and do not contain safety netting like the Skywalker Trampolines. However, the “Use Instructions” provided by Protestant in Exhibit J do not preclude the Skywalker Trampolines from indoor use, so long as there is enough clearance space (24 feet above the ground is recommended) and other safety recommendations are met (e.g., constant supervision, lots of light, etc.). Furthermore, due to the inherent danger that trampolines pose, the netting is necessary to prevent injuries and product liability. As Protestant notes, institutional trampolines are generally part of a larger indoor trampoline park or court and not surrounded by safety netting. However, instead of safety netting, it is clear from the photograph in Protestant’s submission that these trampolines are set within safety platforms (consisting of large thick mats) so that patrons do not fall outside the perimeter and therefore serve a similar purpose.
Protestant asserts that the “size, operation and limited” capacity of the Skywalker Trampolines, when compared with institutional trampolines, makes them toys. Protestant compares the instant trampolines to HQ H010584 (December 18, 2007) wherein CBP classified an automatic pitching machine as a toy. However, there is no comparison between these items. The batting trainer was constructed of plastic and had hollow balls, a far cry from the heavy duty steel incorporated into the Skywalker Trampolines.
A more apt parallel is found in HQ 963284 (June 12, 2001) where Customs classified the Shoot CaseTM Portable Basketball System as sports equipment and not a toy. Customs determined it was a “junior edition” of a real basketball hoop system. While it was designed and marketed for use by children, the item was not a “limited use” representation of larger portable basketball systems. Rather, it was sufficiently sturdy (constructed of steel) to be considered a “junior edition.” In HQ 963284, Customs stated that “sports equipment reduced in size and material quality for use by children will nevertheless be classified in heading 9506, HTSUS, as long as the equipment is of a character suitable for use in the serious organized play or practice of games or sports or athletic recreation.”
CBP does not find that the instant Skywalker Trampolines are “junior editions” of real trampolines, rather, they are their own category of exercise equipment. See also HQ 950758 (January 3, 1992) wherein Customs classified a miniature basketball game in heading 9506 (“The miniature basketball game is not flimsily constructed as is an article for amusement such as a toy, particularly a model. Rather, the article stands six feet tall with a wooden backboard supported by a two-part metal tubular post rising vertically form a tubular floor stand. The basketball game, thus, can function as a recreational article and provide physical activity especially for children…the basketball game is also fit for outdoor use, for instance, in children’s playgrounds.”) Both HQ 963284 and HQ 950758 illustrate that sturdy, well-constructed articles are generally not classified as toys.
(2) Expectations of the ultimate purchaser – While the ultimate purchaser for both products expect that they will be used for domestic family use, user reviews (www.bjs.com) for a similar, if not identical, Skywalker Trampoline (Model #STEC1620.1) state that the trampoline is “sturdy” and many notate that its best uses are “general fitness” and “low impact exercise.” Also, as noted by the American Society for Testing and Materials (ASTM), most recreational trampolines are fairly large and generally set up in one place. These characteristics are true of the Skywalker Trampolines, whereas the Mega Bounce is much smaller in size, lighter, and therefore portable. Unlike the Skywalker Trampolines, the Mega Bounce is portable enough that it could easily be set up in an indoor playroom of a family home (whereas indoor use of the Skywalker Trampolines requires at least 24 feet clearance from ground to ceiling), and the lack of coiled springs (resulting in less bounce) mean that it could be safely used in this environment.
We note, too, that institutional trampolines used in trampoline courts, in addition to providing exercise, are also marketed as providing fun and recreation. In its submission, Protestant does not address this similarity to the Skywalker Trampolines.
Finally, we disagree with Protestant’s claim that the physical exertion and skills required for jumping, skipping, twisting, flipping, performing layouts, and other moves, e.g., fundamental bounce, knee drop, hand and knee drop, back drop, seat drop, front drop, half turntable, and swivel hips as described and illustrated in the “Instructional Program and Model Lessons” on the Skywalker Trampolines are equivalent to what is needed to operate tricycles, scooters, pedal cars, and pogo sticks that are classified as toys. Even if Protestant’s assertion was relevant to the analysis, trampolines are commercially distinct from items protestant names. In New York Ruling Letter (NY) I82311 (May 30, 2002) cited by Protestant, the pogo stick that Customs classified as a toy in heading 9503, HTSUS, had one metal spring to bounce up and down, whereas the Skywalker Trampolines have 96 heavy gauge metal springs, only 22 short of what’s required for trampolines used in the Olympics.
(3) Channels, class or kind of trade in which the merchandise moves (where the merchandise is sold) – Highlighting that the Mega Bounce Trampoline is sold in the toy sections of department stores, drug stores, supermarkets, and toy stores, Protestant argues that similarly, backyard recreational trampolines are typically sold in the “toys and games” or “outdoor play” departments of many retail stores. In contrast, Protestant asserts that competitive and institutional trampolines are sold by specialty retailers or manufacturers.
Our review of the Skywalker Trampolines major retailers, including BJ’s, reveals that recreational trampolines similar to the Skywalker Trampolines, do not always move in the same channels of trade as toys. Because of their larger size and weight, they are not sold in drug stores or supermarkets like the Mega Bounce Trampoline. We found many similarly-sized recreational trampolines that are sold in sporting goods stores. In fact, a review of the Skywalker Trampolines website lists 25 retailers who sell its trampolines, some of which are sporting goods stores and others which are toy stores. However, the instant trampolines being sold in some toy stores do not automatically make them toys for tariff purposes. See HQ 963284 (June 12, 2001) (Customs notes that well-known toy stores such as Toys R Us sell toys, sporting and recreational equipment, and other things directed at a young consumer, but the appearance of the product in a toy store does not automatically make it a toy for tariff purposes.)
(4) Environment of the sale (i.e., accompanying accessories and marketing); (7) Recognition in the trade of this use.
Based on a review of major online/brick and mortar retailers, the overwhelming majority designate trampolines under sporting goods or fitness categories. Similar to the “Triple Toss Game” that accompanies the instant trampolines sold at BJs, we also found a “toss game kit” sold at Dick’s Sporting Goods that is marketed for use on Skywalker Trampolines that emphasizes “sports,” “activity,” and “pitching and throwing practice.”
(5) Usage, if any, in the same manner as merchandise which defines the class – While bouncing on a recreational trampoline may provide amusement, the physical benefit of the subject trampolines outweighs the amusement. Similarly, playground equipment is classified in heading 9506 even though it provides fun and enjoyment. See, e.g., N260626 (dated January 30, 2015) (classifying climbing structures under subheading 9506.99, HTSUS); NY L86306 (dated July 26, 2005) (classifying slides under subheading 9506.99, HTSUS); and N019537(dated November 26, 2007) (classifying a teeter totter under subheading 9506.99, HTSUS). The exercise benefit derived from the playground equipment, which are notated in the ENs as being properly classified in heading 9506, outweighs the amusement. See EN 95.06 (B)(12).
In Protestant’s Exhibit K, “5 Reasons Why Every Kid Needs a Trampoline,” Protestant asserts that three (3) of the reasons focus on fun and only two (2) on physical benefits. This is a misstatement. A review of the five (5) reasons indicate that four (4) include reasons of good health and exercise (e.g., 1/ “It’s Good for Them – A trampoline keeps them jumping around, working their muscles and cardiovascular systems”; 3/ “Outdoor fun is good for them – Just like a trampoline keeps them healthy because they are being active, it also gets them away from the screens and out into the yard, enjoying fresh air”; 4/ “It’s Good For You! – Get out on that trampoline too. NASA discovered that 10 minutes of jumping is the equivalent of 30 min run….there are all sorts of ways to turn it into a serious exercise regime”; 5/ “Years of fun – From the littles getting their coordination right, up the teenagers who do all the daring moves, right up to dad who can keep his body in good shape.”
Likewise, Protestant mischaracterizes the American Academy of Pediatrics (AAP) statement it attaches as Exhibit L in regard to trampoline safety for children and adolescents. Protestant explains that the AAP distinguishes between the use of competitive trampolines used in structured training programs for physical exercise and sports versus recreational trampolines. However, Protestant overlooks that the AAP treats both backyard trampolines and those used in trampoline parks (what Protestant refers to as “institutional trampolines”) as recreational trampolines, issuing the same safety warnings. (“Data are insufficient regarding the safety of trampoline parks and similar installations. Until further safety information is available, the cautions outlined here regarding home trampolines are also applicable to recreational trampoline use in any setting.”)
Furthermore, Protestant’s reliance upon Streetsurfing, supra, to support classification in heading 9503, HTSUS, is misplaced. In Streetsurfing, the Court of International Trade determined that the following five (5) factors were determinative of a waveboard’s (similar to a skateboard) classification in heading 9506, HTSUS: 1/ Need for Training; 2/ Meaningful Risk of Injury; 3/ Skill; 4/ Exercise; and 5/ Design. Applying these factors to the instant case, also supports classification of the Skywalker Trampolines in heading 9506, HTSUS: 1/ Need for Training – the use instructions advise to “[l]earn fundamental bounces and body positions thoroughly before trying more advanced skills…”; 2/ Meaningful Risk of Injury – discussed above in regard to the manufacturer’s caution for constant supervision and the AAP’s warnings about trampoline safety; 3/ Skill – use instructions advise to contact a certified trampoline instructor for information about skills training; 4/ Exercise – discussed above; and 5/ Design – discussed above.
(6) Economic practicality of so using the import – Similarly sized trampolines to that of the Skywalker Trampolines retail for approximately $300-$2,000; while cheaper than professional trampolines, they are still fairly expensive. Again, a parallel can be made with playground equipment which sells in a similar price range.
Finally, protestant argues that Headquarters Ruling Letter HQ 959907 (January 30, 1998) supports classification of the Skywalker Trampolines as toys. In HQ 959907, CBP classified zebra and rainbow-themed jump ropes as toys in heading 9503, HTSUS, because they were shorter, thicker, and less sturdy than the class or kind of jump ropes classifiable in heading 9506, HTSUS. However, it is our view that HQ 959907 stands for the general principle that any merchandise at issue in a particular case must be decided on its specific characteristics and whether they make it more suitable for use as a toy or exercise equipment. HQ 959907 and its discussion of jump ropes is irrelevant to the attributes of the trampolines in the instant case.
Thus, CBP finds that a review of the Carborundum factors, along with prior CBP rulings and court cases, confirms that the subject Skywalker trampolines are not of a class or kind with toys of heading 9503, HTSUS, and are not classifiable therein. Instead, they are properly identified and classified as exercise equipment under heading 9506, HTSUS. The exemplars found in EN 95.06(A) provide many examples of items used in gymnastics, making the trampolines similar in nature to those articles. Our determination is consistent with EN (B)(12) to heading 9506, HTS, which specifies that the heading covers “[e]quipment of a kind used in children’s playgrounds.” The appropriate classification is subheading 9506.91.00, HTSUS, which provides for other articles and equipment for general physical exercise, gymnastics or athletics.
HOLDING:
By application of GRIs 1 and 6, the subject Skywalker trampolines are classified under subheading 9506.91.0030, HTSUSA (Annotated), 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: Articles and equipment for general physical exercise, gymnastics or athletics; parts and accessories thereof … Other.” The 2014 column one, general rate of duty is 4.6 percent ad valorem.
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 of 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 (FOIA), and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division
cc: Jennifer Tagliaferro, Supervisory Entry Specialist, U.S. CBP, Protest & Control, 1100 Raymond Blvd., Suite 402, Newark, NJ 07102.