CLA-2 OT:RR:CTF:CPM H192978 CKG
Kelle Rich
Wham-O Inc.
Director of Supply Chain Management 6301 Owensmouth Ave
Suite 700
Woodland Hills, CA 91367
RE: Reconsideration of NY L86306; classification of water slides
Dear Ms. Rich:
This is in reference to your request of May 12, 2011, for the reconsideration of New York Ruling Letter (NY) L86306, issued to Wham-O Inc., on July 26, 2005. In NY L86306, CBP classified three styles of “super slides” water slides (the Triple Waves, Tunnel Version, and Double Slide) in heading 9506, HTSUS, as articles and equipment for general physical exercise, gymnastics, athletics, other sports or outdoor games. You argue that the correct classification of these items is in heading 9503, HTSUS, as other toys. We find that the water slides at issue are classified in heading 9503 and our analysis follows.
FACTS:
The subject merchandise is described as Super Slides: the Triple Waves style, the Tunnel Version style, and the Double Slide style. Each “super slide” is constructed of polyvinyl chloride and consists of a water slide, a splash landing area at the base of the PVC sheet and an attachment for a garden hose. The slides lie flat on the ground, anchored by means of plastic stakes.
ISSUE:
Whether the instant “super slides” are classified as toys in heading 9503, HTSUS, or in heading 9506, HTSUS, articles for "general physical exercise".
LAW AND ANALYSIS:
Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification 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 GRIs 2 through 6 may then be applied in order.
The HTSUS provisions under consideration are as follows:
9503: 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
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:
* * * *
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).
The EN's to heading 9503 provide, in relevant part, as follows:
This heading covers:
…
(D) Other toys.
…
This group includes:
…
(ix) Toy sports equipment, whether or not in sets (e.g., golf sets,
tennis sets, archery sets, billiard sets; baseball bats, cricket
bats, hockey sticks).
…
(xxiii) Play tents for use by children indoors or outdoors.
EN 95.06, 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.:
(12) Equipment of a kind used in children's playgrounds (e.g., swings, slides, see-
saws and giant strides).
* * * *
We agree that the Triple Waves, Tunnel Version, and Double Slide are properly classified in heading 9503, HTSUS. CBP’s position has been set forth in numerous rulings classifying substantially similar merchandise in heading 9503, HTSUS, including Headquarters Ruling Letter (HQ) H075936, HQ H097735, HQ H097736, HQ H097737, and HQ H097739 (all dated March 29, 2011), as well as NY K82250, NY 854881, and NY M87173. In the above rulings CBP concluded, pursuant to Minnetonka Brands, Inc. v. United States, 110 F. Supp. 2d 1020 (CIT 2000) and United States v. The Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F.2nd 373 (1976), that the principal use of the subject water slides was for personal amusement, rather than for general physical exercise; the physical characteristics of the slides, the expectation of the ultimate purchaser, the channels of trade wherein the slides were sold, the marketing and advertisement of the slides as toys, the economic practicality of using the slides as toys, and the recognition of the slides in the trade as toys, all established conclusively that the subject slides were properly classified as toys in heading 9503, HTSUS. The analysis in HQ H075936, HQ H097735, HQ H097736, HQ H097737, and HQ H097739 is applicable to the instant merchandise, and is hereby incorporated herein.
We further note that HQ H075936, HQ H097735, HQ H097736, HQ H097737, and HQ H097739 all revoked prior CBP rulings classifying similar water slides in heading 9506, HTSUS. As stated in each notice of revocation for the aforementioned rulings, a revocation issued by CBP covers not only the merchandise identified in the ruling being revoked, but also any rulings on this merchandise not specifically identified, as well as any treatment previously accorded by CBP to substantially identical transactions. Pursuant to section 625(c)(2), Tariff Act of 1930 (19 U.S.C. §1625(c)(2)), as amended by section 623 of Title VI, NY L86306 was therefore effectively revoked by HQ H075936, HQ H097735, HQ H097736, HQ H097737, and HQ H097739.
Accordingly, the Triple Waves, Tunnel Version, and Double Slide Slip ‘N Slides are properly classified in heading 9503, HTSUS, and are therefore excluded from classification in heading 9506, HTSUS. See EN 95.06(B).
HOLDING:
By application of GRI 1, the Triple Waves, Tunnel Version, and Double Slide Slip ‘N Slides are classified in heading 9503, HTSUS, specifically subheading 9503.00.00, HTSUS, which 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.” The 2017 column one, general rate of duty is Free.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided online at http://www.usitc.gov/tata/hts/.
The notice and comment requirements under 19 U.S.C. §1625 to revoke NY L86306 were met by the publication of HQ H075936, HQ H097735, HQ H097736, HQ H097737, and HQ H097739. Hence, NY L86306, dated July 26, 2005, is revoked by operation of law.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division