CLA-2 CO:R:C:F 950580 STB
Mr. Keith D. Nowak
Lieberman, Rudolph & Nowak
292 Madison Avenue
New York, New York 10017
RE: Grip Ball
Dear Mr. Nowak:
This letter is in response to your inquiry of September 6,
1991, concerning the tariff classification of two velcro surfaced
paddles and a velcro covered ball, all of which are to be
imported from Korea, marketed and sold together as the "Grip
Ball." A sample was submitted with your inquiry.
FACTS:
The merchandise at issue consists of two round paddles and a
ball. On the surface of the paddles is velcro. The ball is also
covered with velcro. The velcro is designed to allow the user or
users to catch the ball with the paddles. A strap is attached to
the back of the paddle which allows the user to attach the paddle
to his/her hand. On the back of the paddle, where the user would
place the palm of the hand, is the embossed representation of a
baseball glove.
ISSUE:
Whether the Grip Ball should be classified as a toy or as
sports/game equipment?
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
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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 provisions are as follows:
(a) 9506, HTSUSA, Articles and equipment for
gymnastics, athletics, other sports (including
table-tennis) or outdoor games,
(b) 9503, HTSUSA, 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 Grip Ball 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 provides 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
(HRL) 088045, dated November 29, 1990, classifying utility and
playground balls as sports equipment.
It is Customs position that the amusement requirement means
that toys should be used principally 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
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article will be for amusement; thus the article is classifiable
as a toy.
We first note the indication in the EN's that some articles
that may appear to be "sports equipment" may be classifiable as
toys. EN (A)(8) to heading 9503, HTSUSA, states that the
following are classified as "other toys": "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 relatively flimsy construction of the merchandise
in question indicates that it is principally intended for use as
a toy and not for rugged, serious athletic activity.
Additionally, this item is usually sold in toy stores and
displayed with other toy items. These two factors, i.e.,
construction and marketing, were also discussed as important
factors in HRL 088045, cited supra.
HOLDING:
The merchandise marketed as "Grip Ball" is classifiable in
subheading 9503.70.80, HTSUSA, the provision for other toys put
up in sets or outfits, other, other, dutiable at a rate of 6.8%
ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division