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HQ 950758


January 3, 1992

CLA-2 CO:R:C:F 950758 LPF

CATEGORY: CLASSIFICATION

TARIFF NO.: 9506.99.6080

Mr. Leslie A. Glick
Porter, Wright, Morris & Arthur
1233 20th Street, N.W.
Washington, D.C. 20036-2935

RE: Modification of Headquarters Ruling Letter (HRL) 555415; "Mini-Court" Miniature Basketball Game; Heading 9506, HTSUSA, providing for articles and equipment for gymnastics, athletics, other sports (including table tennis) or outdoor games

Dear Mr. Glick:

In HRL 555415, issued February 1, 1991, "Mini-Court," a miniature basketball game, was classified in subheading 9503.20.0020, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), as "[o]ther toys; reduced-size ("scale") models and similar recreational models, working or not;... Reduced-size ("scale") model assembly kits, whether or not working models..., Assembly kits with construction units prefabricated to an essentially uniform scale of the actual article." The general column one rate of duty was 6.8 percent ad valorem. However, an article in this subheading was eligible for duty free treatment under the Generalized System of Preferences (GSP), provided it met the requirements of General Note 3(c)(ii), HTSUSA. Subsequently, we have reviewed that ruling and have found it to be partially in error. The correct classification is as follows.

FACTS:

The article at issue is "Mini-Court", a miniature basketball game manufactured in Mexico of materials from Indonesia and the U.S. The article consists of a metal basketball hoop with a mesh net that is affixed to a wooden backboard. The backboard is supported by a two-part metal tubular post, approximately six feet tall, rising vertically from an x-shaped floor stand, also of tubular construction. The game is a scaled version of standard basketball equipment and is designed for use with an undersized basketball, which is not supplied.

ISSUE:

Whether the miniature basketball game is classifiable in heading 9503, HTSUSA, as an other toy, reduced size ("scale") model or similar recreational model, working or not; or rather in heading 9506, HTSUSA, as an article or equipment for gymnastics, athletics, other sports (including table-tennis) or outdoor games.

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI's) taken in their appropriate order provide a framework for classification of merchandise under the HTSUSA. The majority of imported 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 article at issue is classifiable by applying GRI 1, that is, according to the terms of the applicable heading. The headings to consider in this case are 9503 providing for other toys, reduced size ("scale") models and similar recreational models, working or not and 9506 providing for articles and equipment for gymnastics, athletics, other sports (including table-tennis) or outdoor games.

Although the term "toy" is not specifically defined in the tariff, the EN's to Chapter 95, HTSUSA, indicate that:

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....

As noted above, Chapter 95 divides "toys or models" and "outdoor games or athletic equipment" into two separate headings, 9503 and 9506, respectively. As a result, a classification problem arises concerning the question of amusement. Since all game or athletic equipment provide some amusement, the determination of whether the article should be classified as "toys or models" or as "outdoor games or athletic equipment" is not patently clear. See HRL 088045 classifying utility and playground balls.

It is Customs position that the amusement requirement means that toys should be designed and 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 article will not be as a toy.

The miniature basketball game is not flimsily or delicately constructed as is an article for amusement such as a toy, particularly a model. Rather, the article stands six feet tall with a wooden backboard supported by a two-part metal tubular post rising vertically from a tubular floor stand. The basketball game, thus, can function as a recreational article and provide physical activity especially for children. Although suitable for indoor use, 9506 does not exclude such articles. This is evinced by its inclusion of articles and equipment for table tennis. Moreover, the basketball game is also fit for outdoor use, for instance, in children's playgrounds. Appropriately, EN (B)(12) to heading 9506 explains that the heading covers equipment of a kind used in children's playgrounds. For these reasons, the article is classifiable in heading 9506. The applicable subheading is 9506.99.6080.

HOLDING:

The "Mini-Court" miniature basketball game is classifiable in subheading 9506.99.6080, HTSUSA, as "[a]rticles and equipment for gymnastics, athletics, other sports (including table-tennis) or outdoor games, not specified or included elsewhere in this chapter;...parts and accessories thereof: Other: Other: Other, Other. The general column one rate of duty is 4.64 percent ad valorem. However, an article in this subheading is eligible for duty free treatment under the GSP provided it meets the requirements of General Note 3(c)(ii), HTSUSA.

This notice should be considered a modification of HRL 555415 pursuant to 19 CFR 177.9(d)(1). It is not to be applied retroactively to HRL 555415 (19 CFR 117.9(d)(2)) and will not, therefore, affect past transactions for the importation of your client's merchandise under that ruling. However, for the purposes of future transactions in merchandise of this type, HRL 555415 will not be valid precedent. We recognize that pending
transactions may be adversely affected by this modification, in that current contracts for importations arriving at a port subsequent to this decision will be classified pursuant to it. If such a situation arises, you may, at your discretion, notify this office and apply for relief from the binding effects of this decision as may be warranted by the circumstance.

Sincerely,

John Durant, Director
Commercial Rulings Division

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