CLA-2-95:RR:NC:2:224 G88563
Barbara Y. Wierbicki
Tompkins & Davidson, LLP
One Astor Plaza
1515 Broadway
New York, NY 10036-8901
RE: The tariff classification of an inflatable wading pool made in China.
Dear Ms. Wierbicki:
In your letters dated February 28 and March 23, 2001, you requested a tariff classification ruling on behalf of your client, Avon Products, Inc.
The article in question, identified in submitted company advertising/marketing literature (which you state is still in its developmental stage) as “Clifford The Big Red Dog™ Inflatable Pool” is an inflatable wading pool geared for a toddler or younger preschooler. The 72 inch diameter eight inch deep plastic wading pool has built in inflatable features including the target for a ring toss set, a basketball hoop for use with plastic toss balls, and a fire hydrant sprinkler with a flexible hose that shoots out water. A sample of the merchandise is being returned at your request.
The Gneral Rules of Interpretation (GRIs) to the Harmonized Tariff Schedule of the United States (HTSUS) govern the classification of goods in the tariff schedule. GRI 1 states, in pertinent part, that “for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes***”
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. They provide a commentary on the scope of each heading of the Harmonized System and are generally indicative of the proper interpretation of these headings.
Although the subject merchandise is commercially recognizable as a children’s pool or wading pool and wading pools are provided for in heading 9506 of the HTSUS, you claim that the Clifford inflatable pool is a toy and classifiable in heading 9503, HTSUS, because it is primarily used as a source of entertainment and amusement taking into account its integral toy activity features which “clearly distinguish the article and serve as the focus of consumer interest appeal.” The headings under consideration are as follows:
Articles and equipment for general physical exercise, gymnastics,
athletics, other sports or outdoor games, not specified or included
elsewhere in this chapter; swimming pools and wading pools***
9503 Other toys***
With regard to the claimed heading 9503, HTSUS, the ENs to Chapter 95 at page 1585 indicate that “this chapter covers toys of all kinds whether designed for amusement of children or adults.” It has been Customs position that the amusement requirement means that toys should be designed and used principally for amusement. See HQ 956261, dated May 26, 1994; Additional U.S. Rule of Interpretation 1(a), HTSUS. The Clifford inflatable pool does not itself provide the manipulative play value or frivolous amusement characteristic of toy playthings. It accomplishes what a wading pool is intended to provide – a safe, fun environment for water play. Further, any amusement derived from the basketball throw, the ring toss, or the sprinkler play features is incidental or secondary to the utility of the pool. See HQ 087599, dated March 5, 1991. Thus, our position is that the wading pool in its entirety is not a toy “designed and used principally for amusement” and cannot be classifiable under heading 9503, HTSUS.
With regard to heading 9506, HTSUS, EN 95.06, pg. 1592, states that the heading covers “(C) Swimming pools and paddling pools.” The provisionary language of subheading 9506.99.5500, HTSUS, describes the inclusion of “wading pools” in its scope. Neither the Legal Notes nor the ENs of the HTSUS clarify the reach of subheading 9506.99.5500 nor do they prescribe any further criteria for the inclusion of goods in this subheading. Within the terms of the heading, the only qualification is that goods fall within the meaning of “swimming pools” or “wading pools.” The Clifford inflatable pool, however inexpensive and limited in capacity, functions as a paddling or wading pool. It is described on it’s retail packaging “We’ve made Clifford’s dog dish into this fun inflatable pool so you have a place to splish and splash...” Your client’s proposed advertising literature states “inflatable pool + 3 activities.” Accordingly, the Clifford inflatable pool is classifiable in this subheading. The addition of toy activity features like the ball throw and ring toss and sprinkler, while promoting and enhancing fun play in and around the wading pool, does not transform the pool into a toy nor does it overcome the similarity between this wading pool and other pools classified as wading pools in subheading 9506.99.5500, HTSUS.
The applicable subheading for the “Clifford The Big Red Dog™ Inflatable Pool” will be 9506.99.5500, Harmonized Tariff Schedule of the United States (HTSUS), the provision for swimming pools and wading pools and parts and accessories thereof.
The rate of duty will be 5.3 percent ad valorem.
This ruling is being issued under the provisions of Section 177 of the Customs Regulations (19 C.F.R. 177).
A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Tom McKenna at 212.637.7015.
Sincerely,
Robert B. Swierupski
Director,
National Commodity
Specialist Division