CLA-2 RR:CR:GC 961718ptl
Port Director
U.S. Customs Service
2350 North Sam Houston Parkway East
Suite 1000
Houston, TX 77032-3126
RE: Protest 5301-98-100049; Spalding® “Street Lights?” Balls; HQ 088045.
Dear Port Director:
The following is our decision on Protest 5301-98-100049, against your classification under the Harmonized Tariff Schedule of the United States (HTSUS) of a product identified as Spalding® “Street Lights?” Balls.
FACTS:
The merchandise under consideration consists of a Spalding® “Street Lights?” brand hockey ball, a youth basketball, a youth football and a youth soccer ball. A sample of the youth football was provided for our examination. The football is 8½ inches long, made of vinyl plastic and colored fluorescent red. The logo “Spalding® STREET LIGHTS?” is printed on the ball. Bands at either end of the ball and simulated laces are painted black. The ball has a fill valve for inflation, but no internal bladder. The ball has, as its distinguishing feature, an interior battery operated light which is controlled by a switch positioned slightly below the surface of the ball. When the light is turned on, the ball is illuminated from the inside for night play.
The goods were entered on February 24, 1997, and the entry was liquidated on January 9, 1998, under the provision for articles and equipment for general physical exercise, ..., balls, other than golf balls; inflatable balls in subheading 9506.62, HTSUS. A timely protest under 19 U.S.C. 1514 was filed on March 18, 1998. The protestant requested reliquidation of the entry under the provision for other toys, ..., other, inflatable toy balls, balloons and punchballs in subheading 9503.90.0020, HTSUS.
ISSUE:
What is the classification of the Spalding® “Street Lights?” Balls?
LAW AND ANALYSIS:
Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the HTSUS 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 GRIs may then be applied in order.
In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes (ENs), although not dispositive or legally binding, 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).
Chapter 95, HTSUS, covers both toys and articles which are to be used in athletic events. The headings under consideration are as follows:
9503 Other toys; reduced size ("scale") models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof:
9503.90.00 Other.
* * *
9503.90.0020 Inflatable toy balls, balloons and punchballs.
9506 Articles and equipment for general physical excercise, 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:
Balls, other than golf balls and table tennis
balls:
9506.62 Inflatable balls:
9506.62.40 Footballs and soccer balls.
9506.62.4040 Footballs.
9506.62.4080 Soccer balls.
9506.62.8000 Other
9506.62.8020 Basketballs.
9506.62.8040 Volleyballs.
9506.62.8060 Other.
Although the term "toy" is not specifically defined in the tariff, the ENs to chapter 95, HTSUS, 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 "equipment for general physical exercise" into two separate headings 9503, HTSUS, for toys and 9506, HTSUS, for exercise equipment. The obvious classification problem that arises concerns the question of "amusement". Since all games and athletics utilizing balls provide some amusement, the determination of whether balls should be classified as toys or as “equipment for general physical exercise” will not always be clear.
In HQ 088045, issued November 29, 1990, Customs stated its position that the amusement requirement means that toys should be designed and used primarily for amusement and that articles which provided the user with benefits other than simple amusement would be classified as equipment for general physical exercise. That ruling, which classified balls in heading 9506, HTSUS, noted that the decision was based, in part, on the durability and rugged construction of the balls which indicated that they were intended to withstand the rigors of sports. In that ruling, the subject article was made of “a molded rubber bladder with an inflation valve, which is then wound with nylon for permanent shape retention.”
The Spalding® “Street Lights?” ball we are classifying is made of vinyl plastic, has no internal bladder and has no nylon windings for insuring permanent shape retention. Although it does have an inflation valve which toy balls almost never possess, it has far more factors which weigh in favor of its being classified as a toy. Among the factors which contribute to the article’s amusement and play value are its diminutive size, its fluorescent coloration and its battery operated internal light. Another element to be considered is the packaging of the article. The box in which the product is offered for sale announces that the “Light Up Ball” is “Great for Day or Night Play!”, and further informs the purchaser that the article is “Safe” and “Non-Breakable”. These are not terms or phrases one normally associates with athletic or general sporting articles.
Taken together, all the factors indicate that the Spalding® “Street Lights?” ball is an imitation of a real football, and that, because of its physical characteristics and lack of durability, it cannot be used effectively in the sport of football. The Spalding® “Street Lights?” balls are principally entertaining toys and are classified as toys in subheading 9503.90.0020, HTSUS.
HOLDING:
The articles described as Spalding® “Street Lights?” balls are classified in subheading 9503.90.0020, HTSUS, as other toys; reduced size ("scale") models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof: other; inflatable toy balls, balloons and punchballs.
The protest should be ALLOWED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550 065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs 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 Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
John Durant, Director
Commercial Rulings Division