CLA-2 CO:R:C:F 950401 STB
District Director of Customs
880 Front Street, Rm 5-S-9
San Diego, CA 92188
RE: Flying Discs
Dear Sir:
This is a decision in response to your memorandum of
September 26, 1991 (file: CLA-2-95:S:N:N3D:224-303), in which you
forwarded a request for internal advice. Our decision on
Internal Advice No. 48-91 is as follows:
FACTS:
The subject merchandise is marketed as "Frisbee", and is
described by counsel for the importer as "a saucer-shaped disc
made of plastic." It is manufactured in a variety of colors and
in various sizes. The standard Frisbee is approximately 9.5
inches in diameter. The importer contends that the Frisbee
should be classified as sports equipment and has submitted
documentation and a video-tape to support this contention. The
documentation includes a publication of the World Flying Disc
Federation (WFDF), various articles concerning competitive disc
throwing, an article from a sports magazine on the same topic,
and other related documents. The video-tape is entitled "The
Frisbee Disc Video" and is basically an instructional video
which helps teach throws and catches as well as various games
such as "Disc Golf." Printing on the box states that "[M]any
people enjoy and have enjoyed the thrill of the Frisbee, but few
have mastered the art of the disc."
ISSUE:
Whether the Frisbee should be classified as a toy or as
sports/game equipment?
-2-
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the
United States Annotated (HTSUSA) is made in accordance with the
General Rules of Interpretation (GRI's). The systematic detail
of the harmonized system is such that virtually all goods are
classified by application of GRI 1, that is, 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's may
then be applied. The Explanatory Notes (EN's) to the Harmonized
Commodity Description and Coding System, which represent the
official interpretation of the tariff at the international level,
facilitate classification under the HTSUSA by offering guidance
in understanding the scope of the headings and GRI's.
The competing headings are as follows:
(a) 9506, Articles and equipment for
gymnastics, athletics, other sports (including
table-tennis) or outdoor games,
(b) 9503, Other toys.
The article at issue is classifiable by applying GRI 1, that
is, according to the terms of the applicable heading. It is our
determination that the Frisbee is classifiable in Heading 9503,
HTSUSA.
Although the term "toy" is not specifically defined in the
tariff, the EN's to Chapter 95, HTSUSA, state the following:
This Chapter covers toys of all kinds whether
designed for the amusement of children or adults.
It also includes equipment for indoor or outdoor
games, appliances and apparatus for sports,
gymnastics or athletics, certain requisites for
fishing, hunting or shooting, and roundabouts and
other fairground amusements.
As noted above, Chapter 95 divides "toys" and "game
equipment" into two separate headings, 9503 and 9506,
respectively. As a result, a classification problem arises
concerning the question of amusement. Since all game and
athletic equipment provide some amusement, the determination of
whether the article(s) should be classified as toys or as game
equipment is not patently clear. See Headquarters Ruling Letter
-3-
(HRL) 088045, dated November 29, 1990, classifying utility and
playground balls as sports equipment and HRL 950580, dated
February 20, 1992, classifying an article marketed as "Grip Ball"
as a toy.
It is Customs position that the amusement requirement means
that toys are principally used for amusement. See Additional
U.S. Rule of Interpretation 1(a), HTSUSA. Customs defines
principal use as that use which exceeds each other single use of
the article. In this case, the principal use of the
article will be for amusement; thus the article is classifiable
as a toy.
Customs does not dispute that competitive disc throwing has
reached a certain level of popularity and that flying discs like
the Frisbee are used in organized competition, both in sanctioned
meets where participants compete in events that involve distance,
accuracy, time aloft and ability to make specified throws, and in
recreational "pick-up" games where teams of players conduct
Frisbee games patterned after golf, soccer and football. We are
also aware that some schools teach Frisbee tossing in physical-
education classes. However, the principle use of the flying
disc, by whatever name, continues to be as a source of fun,
amusement and unique diversion, unfettered by serious competition
or intense testing of ones skills and athletic ability. The
Frisbee is most often displayed in stores in the sections which
include toys and various unique amusement items rather than in
the sports equipment sections. In the hands of the majority of
users it is an entertaining throw or toss toy, much like a toy
ball, but with an added unique aerodynamic characteristic.
Flying discs are used in this manner on campuses, beaches, in
playgrounds and backyards, and at picnics in the park.
This ruling is in accord with prior Customs rulings,
including Headquarters Ruling Letter (HRL) 037841, dated July 2,
1975, which held, under the similar language of the TSUS, that
"the frisbee is classifiable as a toy." Although counsel for the
importer has provided more evidence relating to competitive disc
throwing than was presented in the earlier rulings, (some
evidence was presented in those rulings as well) no definitive
evidence is presented that Frisbees, or flying discs in general,
are principally used or designed for serious athletic activity.
-4-
HOLDING:
The article marketed as "Frisbee" is classified in
subheading 9503.90.6000, HTSUSA, the provision for other toys,
other, other, other toys not having a spring mechanism. The
applicable duty rate is 6.8% ad valorem. You should notify the
internal advice applicant of this decision and furnish him with a
copy.
Sincerely,
John Durant, Director
Commercial Rulings Division