Application for Further Review of Protest No. 2704-17-101847; Tariff classification of Spyderball Air/Spyder Pong Game

HQ H289529 November 30, 2018 OT:RR:CTF:CPMM H289529 RGR CATEGORY: Classification TARIFF NO.: 9506.99.6080 Center Director Customs and Border Protection Centers of Excellence and Expertise Consumer Products & Mass Merchandising 1 East Bay Street Savannah, GA 31401 Attn: Eric Buchanan, Supervisory Import Specialist RE: Application for Further Review of Protest No. 2704-17-101847; Tariff classification of Spyderball Air/Spyder Pong Game Dear Port Director: The following is our decision regarding the Application for Further Review (“AFR”) of Protest Number 2704-17-101847, timely filed on January 16, 2017, on behalf of Target General Merchandise, Inc. (“Protestant”). The AFR concerns U.S. Customs and Border Protection’s (“CBP”) classification, under the Harmonized Tariff Schedule of the United States (“HTSUS”), of a spyderball air game (also known as “spyder pong”), which is produced by Franklin Sports. FACTS: The protested merchandise consists of a spyderball air/spyder pong game, which consists of a net and table playing surface that comes with regular legs for indoor use and stake attachments for outdoor use. The merchandise also includes two paddles, one foam ball and one inflatable “Spyderball.” According to the Protestant’s marketing information, “Franklin’s Spyderball Air has revolutionized the recreational sport era by combining table tennis, volleyball, & 4-square into 1 action-packed game.” It is played with two teams, consisting of two or three players per team. According to the merchandise’s instruction manual, to commence play, a player on Team A will serve the spyderball by striking it overhand into the net for the player on Team B across from them. A served ball must be set to one’s partner. A set is any strike of the ball that allows a volley to ensue, and is meant to set up a teammate’s spike. Teams earn points when a spike is not returned by the opponents, which will earn that team a point. Striking the rim or clip results in loss of possession. Teams have three hits amongst themselves to get the ball back over the net, which is the same number allowed in regular volleyball. If they cannot do so, the opposing team is granted a point. Also, like in regular volleyball, no player can hit the ball twice in a row. Only the team serving the ball is able to score a point during play, and a point is earned if the opposing team is unable to return the ball over the net at any time during play. If the team that is serving the ball is unable to return the ball over the net, the serving team is then granted the next serve. The first team to reach 21 points wins the game. The protested entries of the spyderball air/spyder pong game were entered between September 13, 2015 and November 19, 2015 at the Port of Los Angeles, the Port of Tacoma, and the Port of Norfolk (“Ports”) 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.” The entries were liquidated under subheading 9506.99.60, HTSUS, at a duty rate of 4% ad valorem. Protestant filed this Protest and AFR on January 16, 2017, asserting that the subject merchandise is properly classified under subheading 9504.90.90, HTSUS, as “Video game consoles and machines, articles for arcade, table or parlor games, including pinball machines, bagatelle, billiards and special tables for casino games, automatic bowling alley equipment, parts and accessories thereof: Other: Other: Other.” ISSUE: Whether the spyderball air/spyder pong game is classified under heading 9504, HTSUS, as “articles for arcade, table or parlor games,” or under heading 9506, HTSUS, as “articles and equipment for general physical exercise, gymnastics, athletics, other sport (including table-tennis) or outdoor games, not specified or included elsewhere in this chapter.” LAW AND ANALYSIS: The protest was properly filed as a decision on classification under 19 U.S.C. § 1514(a)(2). The protest was timely filed within 180 days of liquidation of the entries. See 19 U.S.C. § 1514(c)(3). Further Review of Protest Number 2704-17-101847 was properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(b) because the decision against which this protest was filed involves questions of law or fact, which have not been ruled upon by the Commissioner of Customs or his designee, or by the courts. Classification under the 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 GRIs may then be applied. The HTSUS provisions under consideration are as follows: 9504 Video game consoles and machines, articles for arcade, table or parlor games, including pinball machines, bagatelle, billiards and special tables for casino games; automatic bowling alley equipment; 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 (EN) 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 the headings. It is CBP’s practice to consult, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89–80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989). The ENs to 95.04 state that the heading excludes:   (3) Tables of the furniture type specially constructed for games (e.g., tables with a draughtboard top).   ***   (5) Table football or similar games. *** The ENs to 95.06 state that the heading includes: (4) Articles and equipment for tabletennis (pingpong), such as tables (with or without legs), bats (paddles), balls and nets. The protested merchandise is described as a sport in the Protestant’s and Franklin Sports’ marketing materials, and it is characterized in its instructional manual as “combining table tennis, volleyball, & 4-square into 1 action-packed game.” As explained above, many rules of spyderball air/spyder pong resemble those of volleyball, thus requiring a similar level physical ability, dexterity and coordination for competitive sport (e.g., teams have three hits amongst themselves to get the ball back over the net, or else the opposing team is granted a point; no player can hit the ball twice in a row). As spyderball air/spyder pong requires a similar level of athletic ability and skill as volleyball and table-tennis (ping pong) and is ejusdem generis with the exemplars listed in the ENs to 95.06, particularly table tennis/ping pong, we find that the subject merchandise is classifiable in heading 9506, HTSUS. Protestant asserts that the subject merchandise is properly classified in heading 9504, HTSUS, as “articles for arcade, table or parlor games . . . parts and accessories thereof,” because it is designed for indoor use and is not a sport. In particular, Protestant cites to New York Ruling Letter (“NY”) N091915, dated February 18, 2010; NY N047858, dated January 23, 2009; and NY N090779, dated February 5, 2010, to support this conclusion. Protestant also cites to EN(3) and EN(5) to 95.04 in support of its argument that the subject merchandise is properly classified in that heading. First, we note that nowhere in heading 9506, HTSUS, is it required that a sport of that heading must be played outdoors. On the contrary, table-tennis (which is set forth in the heading language), or ping pong (as table-tennis is commonly called), is normally played indoors. Moreover, heading 9506, HTSUS, describes “[a]rticles and equipment for general physical exercise, gymnastics, athletics, other sports (including table-tennis) or outdoor games. . .” (emphasis added). Thus, the heading language clearly distinguishes outdoor games from indoor games such as table tennis, both of which are covered by the heading. Second, the three rulings cited by the Protestant describe games that are distinguishable from spyderball air/spyder pong. NY N091915 describes a “washers game” that involves tossing plastic washers, which was classified in heading 9504, HTSUS. NY N047858 describes a “ladderball game,” which was also classified in heading 9504, HTSUS, where the object of the game is to throw bolos with attached sponge balls so that they wrap around ladder rungs. In NY N090779, we classified a bean bag toss/tic tac toe game in heading 9504, HTSUS, where the object of the game is to toss bean bags on a tic tac toe board. Unlike the games in these rulings, which are akin to parlor games of heading 9504, HTSUS, spyderball air/spyder pong requires physical ability, dexterity and coordination, as it is a combination of volleyball and table-tennis (both sports of heading 9506, HTSUS) in one physically active game. As its name implies, spyderball air/spyder pong closely resembles ping pong, or table tennis, which is classified in heading 9506. See NY N014275, dated July 19, 2007 (classifying a tabletop ping pong game in heading 9506, HTSUS). The rules and game play of spyderball air/spyder pong closely resemble those of table tennis and volleyball, particularly its rules for serving, setting, spiking, scoring, etc. Nothing about the games described in NY N091915, NY N047858, and NY N090779 resemble the type of play and rules associated with spyderball air/spyder pong. As spyderball air/spyder pong is distinguishable from the games described in NY N091915, NY N047858, and NY N090779, it is not classifiable in heading 9504, HTSUS. Moreover, Protestant’s reference to EN(3) and EN(5) to 95.04 in support of classification in heading 9504, HTSUS, is irrelevant to the protested merchandise. The ENs to 95.04 identify games that would not require the level of physical ability and skills that are needed for spyderball air/spyder pong. In sum, the proper classification of the spyderball air/spyder pong game is in heading 9506, HTSUS. The protested merchandise is specifically provided for in subheading 9506.99.6080, HTSUSA (Annotated), as “[a]rticles 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.” HOLDING: By application of GRIs 1 and 6, the spyderball air/spyder pong game is classified under heading 9506, HTSUS, specifically under subheading 9506.99.6080, HTSUSA, which provides for “[a]rticles 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 column one, general rate of duty at the time of entry was 4% 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 at https://hts.usitc.gov/current. 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 Trade, Regulations and Rulings will make the decision available to CBP personnel and to the public online at http://www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution. Sincerely, Myles B. Harmon, Director Commercial and Trade Facilitation Division