CBP Ruling H092279

HQ H092279 January 13, 2012 CLA-2 OT:RR:CTF:TCM HQ H092279 TNA CATEGORY: Classification TARIFF NO.: 9503.00.00 Mr. Joseph Hoffacker Barthco Trade Consultants The Navy Yard 5101 S. Broad Street Philadelphia, PA 19112-1404 RE: Revocation of NY N023143; Classification of a Sky Catch Ball Set from China Dear Mr. Hoffacker: This letter is in reference to New York Ruling Letter ("NY") N023143, issued to K.B. Toys on March 7, 2008, concerning the tariff classification of a Sky Catch Set from China. In that ruling, U.S. Customs and Border Protection ("CBP") classified the Sky Catch Ball Set under subheading 9506.99.60, Harmonized Tariff Schedule of the United States ("HTSUS"), as "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." We have reviewed NY N023143 and found it to be in error. For the reasons set forth below, we hereby revoke NY N023143. Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. §1625(c)(1)), as amended by section 623 of Title VI, notice proposing to revoke NY N02143 was published in the Customs Bulletin, Vol. 44, No. 24, on June 9, 2010. A revised notice of the proposed action was published in the Customs Bulletin, Vol. 45, No. 45, on November 2, 2011 to correct typos in the original notice. No comments were received in response to either notice. FACTS: The subject merchandise consists of an outdoor game that is comprised of two plastic paddles and one plastic ball. The paddles are used to both throw and catch the ball. The game is designed for players ages three and older. In NY N023143, dated March 7, 2008, CBP classified the Sky Catch Ball Set under subheading 9506.99.60, HTSUS, as: "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." ISSUE: Whether a Sky Catch Set is classified under heading 9503, HTSUS, as a toy, or under heading 9506, HTSUS, as an article or equipment for general physical exercise, gymnastics or other sports? LAW AND ANALYSIS: Classification under the Harmonized Tariff Schedule of the United States (HTSUS) is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods 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 GRI may then be applied. The HTSUS provisions under consideration are as follows: 9503.00.00 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: Other: 9506.99 Other: 9506.99.60 Other 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 for heading 9503, HTSUS, states, in pertinent part: This heading covers:... (D) Other toys This group covers toys intended essentially for the amusement of persons (children or adults)... This group includes: All toys not included in (A) to (C). Most of the toys are mechanically or electrically operated. These include:... (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). The EN for heading 9506, HTSUS, states, in pertinent part: (B) Requisites for other sports and outdoor games (other than toys presented in sets, or separately, of heading 95.03), e.g. : (1) Snow-skis and other snow-ski equipment, (e.g., ski-fastenings (ski-bindings), ski brakes, ski poles). (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. (3) Golf clubs and other golf equipment, such as golf balls, golf tees. (4) Articles and equipment for table-tennis (ping-pong), such as tables (with or without legs), bats (paddles), balls and nets. (5) Tennis, badminton or similar rackets (e.g., squash rackets), whether or not strung. (6) Balls, other than golf balls and table-tennis balls, such as tennis balls, footballs, rugby balls and similar balls (including bladders and covers for such balls); water polo, basketball and similar valve type balls; cricket balls. (7) Ice skates and roller skates, including skating boots with skates attached. (8) Sticks and bats for hockey, cricket, lacrosse, etc.; chistera (jai alai scoops); pucks for ice hockey; curling stones. (9) Nets for various games (tennis, badminton, volleyball, football, basketball, etc.). (10) Fencing equipment: fencing foils, sabres and rapiers and their parts (e.g., blades, guards, hilts and buttons or stops), etc. (11) Archery equipment, such as bows, arrows and targets. (12) Equipment of a kind used in children's playgrounds (e.g., swings, slides, see-saws and giant strides). (13) Protective equipment for sports or games, e.g., fencing masks and breast plates, elbow and knee pads, cricket pads, shin-guards. (14) Other articles and equipment, such as requisites for deck tennis, quoits or bowls; skate boards; racket presses; mallets for polo or croquet; boomerangs; ice axes; clay pigeons and clay pigeon projectors; bobsleighs (bobsleds), luges and similar non-motorised vehicles for sliding on snow or ice. In NY N023143, CBP classified the subject merchandise under heading 9506, HTSUS, as 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. Multiple court cases and CBP rulings distinguish between objects which are used in competitive sports, and items that principally provide amusement, classifying the former in heading 9506, HTSUS, and the latter in heading 9503, HTSUS. In particular, the Court of International Trade construes heading 9503 as a "principal use" provision insofar as it pertains to toys. See Minnetonka Brands v. United States, 110 F.Supp. 2d 1020, 1026 (Ct. Int'l Trade 2000). In order for the merchandise to be considered a toy under heading 9503, HTSUS, the item's principal use must be for amusement. In Ideal Toy Corp. v. United States, 78 Cust. Ct. 28, C.D. 4688 (1977), the court noted that "when amusement and utility become locked in controversy, the question becomes one of determining whether the amusement is incidental to the utilitarian purpose, or the utilitarian purpose incidental to the amusement." Ideal Toy Corp, 78 Cust. Ct. 28 at 33. Courts have also provided several factors to apply when determining whether merchandise falls within a particular class or kind of good. They include: (1) the general physical characteristics of the merchandise; (2) the expectation of the ultimate purchasers; (3) the channels of trade in which the merchandise moves; (4) the environment of the sale (e.g. the manner in which the merchandise is advertised and displayed); (5) the usage of the merchandise; (6) the economic practicality of so using the import; and (7) the recognition in the trade of this use. See United States v. Carborundum Co., 63 CCPA 98, 102, 536 F.2d 373, 377 (1976), cert denied, 429 U.S. 979 (1976). Furthermore, Newman Importing Co., Inc. v. United States construed the term "sport" to include specific activities which possess, "to a meaningful degree, the same attributes of healthy, challenging and skillful recreation which characterize such acknowledged sports as scuba diving, skiing, horseback riding and mountain climbing." Newman Importing Co., Inc. v. United States, 76 Cust. Ct. 143, 144. Numerous CBP rulings distinguish between the items of heading 9503, HTSUS, and heading 9506, HTSUS, along these lines. HQ 950401, dated July 6, 1992, for example, classified a Frisbee under heading 9503, HTSUS, because it was a "source of fun and amusement" rather than being an activity that required "serious competition or intense testing of ones' skills and athletic ability." See HQ 950401. Other rulings have classified Velcro-surfaced paddles and a Velcro Ball as toys because their "relatively flimsy construction" indicated that they were "principally intended for use as a toy and not for rugged, serious athletic activity." See HQ 950580, dated February 20, 1992. Other rulings have classified merchandise in heading 9503, HTSUS, based on a similar distinguishing between competitive sports and toys. See, e.g., HQ 953122, dated April 22, 1993 ("it is our determination that the item is a toy in that its principle use is to provide amusement to children or adults, not to equip them for competition and winning."); HQ 959715, dated March 11, 1997; HQ 959885, dated December 30, 1997; HQ 961718, dated May 7, 1999. In the present case, the subject merchandise consists of plastic paddles and a plastic ball, certainly a flimsier construction than the leather baseball gloves and hardballs used in competitive baseball, for example. Furthermore, the subject merchandise does little to foster participants' athletic skills and competitive edge. As a result, we find that the sky catch ball set is designed as a source of amusement rather than as a serious athletic activity meant to equip its users for competition. As a result, CBP finds that the Sky Catch Ball Set is classified under subheading 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." HOLDING: Under the authority of GRI 1, K.B. Toys' Sky Catch Ball set from China is provided for in 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 general, column one, duty rate 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 on the internet at www.usitc.gov/tata/hts/. EFFECT ON OTHER RULINGS: NY N023143, dated March 7, 2008, is REVOKED. In accordance with 19 U.S.C. §1625(c), this ruling will become effective 60 days after publication in the Customs Bulletin. Sincerely, Myles B. Harmon, Director Commercial and Trade Facilitation Division 6