CLA-2 RR:CR:GC 967293 MG
Ms. Cari Grego
Dollar Tree Stores, Inc.
500 Volvo Parkway Chesapeake, VA 23320
RE: Revocation of J82455; tennis balls
Dear Ms. Grego:
This is in response to an internal request for the reconsideration of NY J82455, dated April 21, 2003, on three multicolored balls under the Harmonized Tariff Schedule of the United States (HTSUS). This ruling letter sets forth the correct classification of the subject merchandise.
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 (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed revocation of NY J82455 was published on November 17, 2004, in the Customs Bulletin, Volume 38, Number 47. No comments were received in response to that notice.
FACTS:
In describing the subject merchandise, NY J82455 provided as follows:
The submitted sample is identified as item number SKU 132044, pet toys. The sample consists of three multicolored tennis balls that are decorated with paw prints. In a telephone conversation with this office you stated that the pet toy tennis balls are made of natural rubber.
ISSUE:
Whether the three multicolored balls are dog toys under heading 4016, HTSUS, or tennis balls under heading 9506, HTSUS?
LAW AND ANALYSIS:
Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes and, provided such headings or notes do not otherwise require, according to the remaining GRIs.
Additional Rule of Interpretation (ARI) 1(a) states that in the absence of special language or context which otherwise requires, a tariff classification controlled by use (other than actual use) is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use.
The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff at the international level. The ENs, although neither dispositive or legally binding, facilitate classification by providing 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.
The HTSUS provisions under consideration are as follows:
Other articles of vulcanized rubber other than hard rubber:
Other:
Other:
Toys for pets
* * * * * *
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:
Balls, other than golf balls and table-tennis balls:
9506.61.00 Lawn-tennis balls
In NY J82455, CBP classified three multicolored balls with paw prints on them under subheading 4016.99.20, HTSUS, which provides for “Other articles of vulcanized rubber, other than hard rubber: Other: Other: Toys for pets.” In that ruling, CBP held that the merchandise, because they are intended for use by pets, cannot be considered equipment for use by human beings in physical activities designed to train, develop or condition the body and improve physical fitness. As a result, they were not classified under heading 9506, HTSUS.
GRI 3(a) states, in pertinent part, that when goods are prima facie classifiable under two or more headings, the heading which provides the most specific description shall be preferred to headings providing a more general description. We note initially that heading 4016, HTSUS, is a basket provision and applies only if the merchandise is not more specifically described elsewhere. Therefore, inasmuch as the merchandise at issue is an article of rubber that is covered by the heading text of 4016, HTSUS, we must first examine any other provision, which, if applicable, would take precedence for purposes of classification.
Heading 9506, HTSUS, applies to articles and equipment for general physical exercise, such as for sports and outdoor games. EN 95.06 states in pertinent part:
This heading covers:
…
Requisites for other sports and outdoor games (other than toys presented in sets, or separately, of heading 95.03), e.g.:
…
Balls, other than golf balls and table-tennis balls, such as tennis balls…[Emphasis added].
Heading 9506, HTSUS, is a principal use provision and, therefore, subject to Additional U.S. Rule of Interpretation 1(a), HTSUS. In Primal Lite v. United States, 15 F. Supp. 2d 915 (CIT 1998); aff’d 182 F. 3d 1362 (CAFC 1999), the Court of International Trade addressed ARI 1(a), providing that the purpose of principal use provisions in the HTSUS is to classify particular merchandise according to the ordinary use of such merchandise, even though particular imported goods may be put to some atypical use. Therefore, classification under the heading is controlled by the principal use in the United States of goods of that class or kind to which the imported goods belong at or immediately prior to the date of the importation. Lenox v. Coll. v. United States, 20 CIT, Slip Op. 96-30 (February 2, 1996). It is equally important to note that we are not examining the actual use of the instant merchandise in making our determination, but rather examining whether the pertinent characteristics of the instant merchandise are substantially similar to those of the typical merchandise falling within the class.
To be classified under heading 9506, HTSUS, the ball at issue would have to be part of the class or kind of ball that is considered a “tennis ball.” In determining the class or kind of goods to which an article belongs, CBP may consider a variety of factors including: (1) the general physical characteristics of the merchandise; (2) the expectation of the ultimate purchaser; (3) the channels of trade in which the merchandise moves; (4) the environment of sale (accompanying accessories, manner of advertisement and display); and (5) the usage of the merchandise. United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F.2d 373 (1976), cert. denied, 429 U.S. 979.
Regarding the instant merchandise, the balls are visually identical to recognized tennis balls in their shape, size, and the felt material used to cover them. Other than the fact that the balls have paw prints on the surface of the felt material, there is no obvious indication that they will be marketed for use by pets and they are, in fact, dissimilar to any type of recognized pet toy. In addition, regardless of the fact that the balls may ultimately be used as pet toys, our examination of the available information leads us to conclude that, upon importation, they are of the class or kind of ball that is considered a tennis ball. We additionally note that in NY J82455, CBP described the merchandise as “tennis balls,” but did not classify them under heading 9506, HTSUS, only because they were intended for use by animals. As previously stated, their ultimate use by pets is not determinative for purposes of classification.
Finally, CBP has previously classified substantially similar merchandise under heading 9506, HTSUS. In NY J89264, dated September 25, 2003, CBP determined that the Fetch Tote™ was a “tennis ball” and therefore should be classified under subheading 9506.61.00, HTSUS. The Fetch Tote™ consisted of two components, a ball and accompanying belt pouch. The ball was non-pressurized and was identical to a tennis ball due to its size, shape; and the fact that it was covered in blue and white felt of the same configuration as recognized tennis balls; the ball also had the word “Chuckit!” printed on it. In addition, the ball was produced by a tennis ball manufacturer. Because that ball was seemingly identical to recognized tennis balls in both appearance and construction, and therefore dissimilar to any type of pet toy, CBP determined that classification was proper under heading 9506, HTSUS. CBP notes that the merchandise at issue is seemingly identical to the Fetch Tote™.
In view of the foregoing, the merchandise at issue is classified under the more specific heading, 9506, HTSUS, and more specifically under subheading 9506.61.00, HTSUS, as a tennis ball.
HOLDING:
The ball is classified under subheading 9506.61.0000, Harmonized Tariff Schedule of the United States Annotated, 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: Balls, other than golf balls and table-tennis balls: Lawn-tennis balls.” The general, column one rate of duty 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 World Wide Web at www.usitc.gov.
EFFECT ON OTHER RULINGS:
NY J82455, dated April 21, 2003 is REVOKED. In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial Rulings Division