CLA-2 OT:RR:CTF:CPMM H225359 RGR
Mr. Kevin Anderson
Wham-O Inc.
5903 Christie Avenue
Emeryville, CA 94608
Re: Revocation of NY K88277, NY N019683, and NY F84500; Classification of Inflatable Aquatic Articles for Physical Recreation
Dear Mr. Anderson:
This is in reference to New York Ruling Letter (NY) K88277, dated August 17, 2004, issued to you concerning the tariff classification of two Sea Doo brand products, Splash Island and Paradise Peak, under the Harmonized Tariff Schedule of the United States (HTSUS). Both are plastic inflatable floats meant for use in calm open water. U.S. Customs and Border Protection (CBP) classified them under heading 3926, HTSUS, as other articles of plastics. We have reviewed NY K88277 and find it to be in error.
Upon reconsideration, we have determined that the appropriate classification for inflatable aquatic articles for physical recreation, like the ones in NY K88277, is under heading 9506, HTSUS, and, more specifically, subheading 9506.99, HTSUS, as other sports or outdoor games. Accordingly, we propose revocation of NY K88277 as well as two other rulings on similar inflatable aquatic articles. In NY F84500, dated March 29, 2000, CBP erred when classifying H2O Mountain, H2O Trampoline, and H2O Totter under heading 3926, HTSUS. In NY N019683, dated November 26, 2007, CBP properly classified a water bouncer under heading 9506, HTSUS, but erred when classifying it under subheading 9506.91, HTSUS, as articles for general physical exercise, gymnastics or athletics. The appropriate classification for the products described in NY F84500 and NY N019683 is the same as what we have determined for NY K88277, i.e., under heading 9506, HTSUS, and, more specifically, subheading 9506.99, HTSUS, as other sports and outdoor games.
Pursuant to 19 U.S.C. § 1625(c)(1), a notice was published in the Customs Bulletin, Volume 50, No. 34, on August 24, 2016, proposing to revoke NY K88277, NY N019683, and NY F84500, and any treatment accorded to substantially similar transactions. Two comments were received and the arguments made therein were considered in this office’s analysis below.
FACTS:
The subject merchandise at issue in NY K88277 consists of two Sea Doo brand products, Splash Island and the Paradise Peak, which are plastic inflatable floats meant to facilitate physical recreation in calm open water. Splash Island resembles a trampoline, and includes a small inflatable extension identified as an easy access platform that provides access for the jumper as well as a seating area for a second person. Paradise Peak resembles a sliding pond. There are recesses (molded steps) on one side so that a person can climb to the top and then slide down the other side. The float portion underneath the sliding pond provides a shaded resting area that is large enough for several people. There is an easy access inflatable platform extension on the climbing part of the float, and an additional floating platform next to the resting area. Both Splash Island and Paradise Peak incorporate anchor bags and anchor ropes.
In addition to the original descriptive information set forth in NY K88277, we have reviewed representative product specific literature that is available on the Internet. Splash Island has a 125” diameter (with a 72” diameter for the nylon jump area). It is constructed of 30 gauge PVC and has the following features (in addition to what was described in NY K88277): four soft vinyl handles, four swimmer ropes, and a wrap-around swimmer rope. The total weight limit for Splash Island is 1000 pounds and the jump surface weight limit is 235 pounds. Paradise Peak has the following dimensions: 10.5' x 7' x 7.5' and a 8' x 4' sliding surface. There are soft vinyl handles attached at various points on the molded steps as well as on the access platforms. The total weight limit for Paradise Peak is 600 pounds and the access platform and sliding surface are limited to 200 pounds.
ISSUES:
Whether the Splash Island and Paradise Peak Sea Doo brand products are classified under heading 3926, HTSUS, as other articles of plastics, or heading 9506, HTSUS, as other sports or outdoor games.
If these articles are classified under heading 9506, HTSUS, what is the correct subheading?
LAW AND ANALYSIS:
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:
3926 Other articles of plastics and articles of other materials of headings 3901 to 3914:
* * *
3926.90 Other:
* * *
3926.90.7500 Pneumatic mattresses and other inflatable articles, not elsewhere specified or included
* * *
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:
* * *
Water skis, surf boards, sailboards and other water-sport equipment; parts and accessories thereof
* * *
9506.29.00 Other:
* * *
9506.29.0080 Other
* * *
9506.91.00 Articles and equipment for general physical exercise, gymnastics or athletics; parts and accessories thereof
* * *
9506.91.0030 Other
9506.99 Other:
* * *
9506.99.60 Other
* * *
9506.99.6080 Other
The only applicable note is Legal Note 2(y) to Chapter 39, which provides as follows: “This chapter does not cover: … [a]rticles of chapter 95 (for example, toys, games and sports equipment)[.]”
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 (Aug. 23, 1989). The relevant ENs, which are 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.:
* * *
(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 in bottles, and simple underwater breathing tubes (generally known as “snorkels”) for swimmers or divers.
* * *
(12) Equipment of a kind used in children’s playgrounds (e.g., swings, slides, see saws and giant strides).
* * *
Issue 1: Classification at the Heading Level
By application of GRI 1 and Legal Note 2(y) to Chapter 39, the threshold inquiry is whether the inflatable aquatic articles for physical recreation are classifiable under heading 9506, HTSUS. If so, then classification under heading 3926 is precluded. We have determined that Splash Island and Paradise Peak are intended to facilitate physical recreation in the form of sports or outdoor games, as described in EN (B)(2) to heading 9506. HTSUS. Splash Island, which has a jump surface weight limit, is intended for bouncing and serving as a platform to bounce and jump into water. Paradise Peak is intended for climbing and sliding into water. While it may be possible to lounge upon these articles, that is not their primary function nor would a consumer buy such articles principally for this purpose. Cf. HQ 966929, dated March 23, 2004 (determining that the subject floating pool lounger was “not intended for use in connection with any sporting or athletic activity as are the items set forth in EN 95.06” and its “purpose is as a lounging device for relaxing in the water and not for any type of physical activity”). In short, Splash Island and Paradise Peak are akin to outdoor play equipment (albeit for use in calm open water) and are thus classifiable under heading 9506, HTSUS.
It is noteworthy that the substantial construction of Splash Island and Paradise Peak means that they are distinguishable from toys of heading 9503, HTSUS. Splash Island and Paradise Peak lack the “manipulative play value or frivolous amusement characteristic of a toy,” which is a defining characteristic of articles of heading 9503 cited in NY N122501, dated October 6, 2010 (holding that a modular slide kit is not a toy of heading 9503). This is a critical distinction from the land-based inflatable play structures that CBP has classified as toy sports equipment of heading 9503. See, e.g., HQ H097740, dated March 29, 2011 (classifying an inflatable land-based play structure, identified as the "Mega Bounce Trampoline," under heading 9503). While they are intended for bouncing/jumping and climbing/sliding, Splash Island and Paradise Peak are constructed of 30 gauge PVC, with anchoring systems, and they are designed to remain outdoors for extended periods of time. Cf. HQ 963284, dated June 12, 2001 (citing HQ 950758, dated January 3, 1992, wherein CBP found that a "Mini-Court" miniature basketball game was classified under subheading 9506.99 because “[i]t was not so flimsily constructed as to be an article for amusement, eligible for classification as a toy.”)
Our determination to classify Splash Island and Paradise Peak under heading 9506, HTSUS, per the analysis above, does not rely on NY F84500, which was cited in NY K88277. Upon reconsideration, NY F84500 also appears to be in error. CBP incorrectly classified other inflatable aquatic articles for physical recreation, specifically H2O Mountain, H2O Trampoline, and H2O Totter, under heading 3926, HTSUS. In NY F84500, the products are described as follows:
One item, described as the H2O Mountain, is an inflatable object made of 1000 denier PVC designed to float on water. The H2O Mountain has climbing handles randomly placed on three sides presenting variable degrees of climbing difficulty in a recreational activity similar to a climbing wall. The fourth side acts as a slide into the water. The H2O Mountain comes in eight, 14 and 20-foot sizes.
A second item, the H2O Trampoline, is an inflatable water trampoline. The article comes in 10, 15 and 20-foot sizes and is made of 30 ounce, 1000 denier PVC around a multi-section steel framework.
The H2O Totter consists of an inflatable teeter totter-like device made of 1000 denier, 30 ounce PVC. Two to six people can climb on opposite ends of the totter device and rock back and forth, trying to avoid falling into the water.
In NY F84500, CBP rejected classification of these three products under heading 9506, HTSUS, because they did not satisfy the terms of subheading 9506.29, HTSUS. While it is true that subheading 9506.29, HTSUS, did not apply to those three products (see analysis below), CBP did not consider the general applicability of heading 9506, HTSUS, and analyze its other subheadings, as appropriate. We have determined that H2O Mountain is similar to Paradise Peak, H2O Trampoline is similar to Splash Island, and H2O Totter is also used for comparable physical recreation on calm open water. Accordingly, these products are also classifiable under heading 9506, HTSUS, for the reasons set forth above.
Issue 2: Classification at the Subheading Level
Classification of Splash Island and Paradise Peak under heading 9506, HTSUS, is appropriate in light of the above, and so the next step in the classification analysis is to determine the proper subheading under the HTSUS. GRI 6 states that the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. The subheadings under consideration are as follows: 9506.29, HTSUS, which provides for other watersport equipment; 9506.91, HTSUS, which provides for other articles and equipment for general physical exercise, gymnastics or athletics; and 9506.99, HTSUS, which provides for articles and equipment for other sports or outdoor games.
Subheading 9506.29, HTSUS, is inapplicable because Splash Island and Paradise Peak are not water-sport equipment. As noted in NY K88277, and consistent with EN (B)(2) to heading 9506, “this subheading [9506.29] is intended to cover such water sport articles as water skis, surf boards and body boards, sailboards, swim masks and flippers, underwater breathing tubes, swim training devices, and various other water sport equipment” and “[t]he subject inflatable floats are not used in the performance or achievement of such similar sport/athletic water activities as are the aforementioned class of goods.” While being towed by boats in order to perform will qualify an aquatic inflatable article for classification under subheading 9506.29, HTSUS, physical recreation in the form of jumping/bouncing and climbing/sliding in calm waters is not within its scope. See NY C88968, dated June 25, 1998 (classifying the following inflatable aquatic articles that are towable under subheading 9506.29: ski tubes with two air chambers and two large grab handles, and Ski Rocket and Jet Towable, both having grab handles and separate harness systems for towing).
Subheading 9506.91, HTSUS, is inapplicable because Splash Island and Paradise Peak are not “[a]rticles and equipment for general physical exercise, gymnastics or athletics.” Neither the legal notes nor the ENs provide a definition of what is meant by this phrase, but EN (A) to heading 9506 provides some exemplars. None of those exemplars is comparable to jumping/bouncing and climbing/sliding for physical recreation on calm open water. With respect to Splash Island, we note that while land-based trampolines used for exercise and/or gymnastics are not specifically listed in EN (A), CBP has classified them under subheading 9506.91, HTSUS (see, e.g., NY N144678, dated February 14, 2011). However, a trampoline-type device that is principally used for bouncing and jumping into water is distinguishable because it is not for general physical exercise, gymnastics or athletics; but, rather, it as an article for physical recreation. In this regard, Splash Island lacks the essential character of a traditional land-based trampoline and would not be classified under subheading 9506.91, HTSUS. The same is true for Paradise Peak, as climbing and sliding on calm open water are recreational in nature, as opposed to being for general physical exercise, gymnastics or athletics.
Because subheadings 9506.29 and 9506.91 are inapplicable, the classification of Splash Island and Paradise Peak falls under the residual “other” provision in subheading 9506.99, HTSUS. This determination is consistent with EN (B)(12) to heading 9506, HTSUS, which specifies that the heading covers “[e]quipment of a kind used in children’s playgrounds” and identifies the following as examples thereof: “swings, slides, see saws and giant strides.” Such equipment is for use in physical recreation that involves sports or outdoor games of heading 9506, HTSUS, other than those specifically covered by subheadings 9506.29 and 9506.91, HTSUS. The Court of International Trade has also previously determined that an article that is not classifiable in the other six-digit subheadings of heading 9506, HTSUS, but which “provide[s] users with meaningful exercise and a reasonable degree of physical activity” may be classified as other sport equipment under subheading 9506.99. Streetsurfing LLC v. United States, 11 F. Supp. 38 1287, 1302 - 04 (Ct. Int’l Trade 2014) (classifying waveboards under subheading 9506.99.60, HTSUS).
We note that classification of Splash Island and Paradise Peak under subheading 9506.99, HTSUS, is also consistent with other rulings on land-based playground equipment that facilitates physical recreation. 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). Moreover, this rationale applies to the classification of the H2O Mountain, H2O Trampoline, and H2O Totter, as described in NY F84500.
Our determination to classify Splash Island and Paradise Peak under subheading 9506.99, HTSUS, per the analysis above, does not rely on NY N019683. Upon reconsideration, NY N019683 appears to be in error. CBP incorrectly classified a water bouncer under subheading 9506.29, HTSUS, instead of subheading 9506.99, HTSUS. In NY N019683, the water bouncer was described as follows:
The Water Bouncer is [an inflatable tube] constructed of 30 Gauge PVC and includes a ladder, a storage bag, and a pump. The platform across the top of the tube enables either children or adults to bounce on the platform before jumping into the water. The Water Bouncer which is 10 feet in diameter may be towed by a boat for use in deep water.
We have determined that the water bouncer is similar to Splash Island and, thus, it is also classifiable under subheading 9506.99, HTSUS, for the reasons set forth above.
The first set of comments received by our office in response to the notice of proposed revocation of NY K88277, NY N019683, and NY F84500 argues that the instant ruling conflicts with HQ H145739, dated November 16, 2012, which classified inflatable swimming pool floats, chairs and lounges for infants, children, and adults in heading 6307, HTSUS. Specifically, the commenter requests that CBP revoke its prior treatment of substantially similar merchandise, including the articles addressed in HQ H145739. We understand that this issue is under review by the U.S. Court of International Trade. See Swimways Corp. v. United States, No. 13-00216 (Ct. Int’l Trade filed June 20, 2013) and Swimways Corp. v. United States, No.13-00397 (Ct. Int’l Trade filed Dec. 11, 2013). However, the articles at issue in HQ H145739 and Swimways Corp. are distinguishable from the protested merchandise because the merchandise in those matters are floats for lounging, are not for recreational activity, are not used in the performance or achievement of athletic water activities described in the EN to 95.06, and are not pieces of sports equipment within the scope of heading 9506, HTSUS.
The second set of comments urges CBP not to classify inflatable aquatic articles for physical recreation under subheading 9506.99.6080. HTSUSA (Annotated), but rather under subheading 9506.29.0080, HTSUSA, as addressed in NY N019683. As explained above, NY N019683 was in error because the merchandise at issue in that ruling was not water-sport equipment. Moreover, none of the exemplars in EN (A) to heading 9506, which describes “articles and equipment for general physical exercise, gymnastics, or athletics” under subheading 9506.91, HTSUS, is comparable to jumping/bouncing for physical recreation on calm open water. Cf. NY N144678, dated February 14, 2011, and HQ H270403, dated October 31, 2017 (traditional land-based trampolines are distinguishable from the merchandise in NY N019683 because they are used for general physical exercise, gymnastics or athletics). Therefore, the proper classification of the merchandise in NY N019683 is under subheading 9506.99.6080, HTSUSA.
HOLDING:
By application of GRIs 1 and 6, the Splash Island and Paradise Peak Sea Doo brand products are classified under 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 2018 column one, general rate of duty is 4 percent ad valorem.
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 on the World Wide Web at www.usitc.gov.
EFFECT ON OTHER RULINGS:
NY K88277, dated August 17, 2004, NY F84500, dated March 29, 2000, and NY N019683, dated November 26, 2007, are hereby revoked.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division