NY 0866817 - The tariff classification of a flying disc from Mexico - United States International Trade Commision Rulings

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NY 866817

October 8, 1991

CLA-2-95:S:N:N3D:225 866817

CATEGORY: CLASSIFICATION

TARIFF NO.: 9503.90.6000

Ms. Stella C. Hall
Porter International Inc.
P.O. Box 81488
San Diego, CA 92138

RE: The tariff classification of a flying disc from Mexico

Dear Ms. Hall:

In your letter dated August 26, 1991, received in this office on September 11, 1991, you requested a tariff classification ruling on behalf of your client Offshore Promotions, Inc.

The sample submitted is a plastic saucer shaped flying disc measuring approximately 9 inches in diameter. You contend that the flying disc is a sport or game activity and should be classified under 9506.99.60802 as other articles and equipment for...athletics, other sports...or outdoor games.

A similar argument concerning the use of saucer-shaped flying discs was presented for Headquarters review in 1975. Headquarters concluded that even though a sporting event may be built around use of a Frisbee, the chief use in the United States in the hands of the ultimate consumer is for toy play and amusement and the Frisbee was classified as a toy. (Now 9503.90.6000, HTS, the subheading for other toys).

Heading 9503, HTS, provides, in pertinent part, for "this chapter covers toys of all kinds whether designed for the amusement of children or adults." Thus, a toy is interpreted to refer to an article designed for amusement. The phrase "designed for the amusement of" in the interpretation of toys is understood to indicate that the use of an article will be a factor when classification of a toy is being considered.

Additional U.S. Rule of Interpretation 1(a), HTS, provides that, absent special language to the contrary:
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.

Thus, in order to be classified as a toy, the article must be principally used as a plaything for amusement. Customs defines principal use as that use which exceeds each other single use of the article. In our opinion, flying discs as a class of merchandise continue to be toys for tariff purposes because they meet the above definition -- they are principally used as a plaything and as a source of fun and amusement for children or adults.

We do 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 hundreds of schools, from elementary through college level, are teaching Frisbee tossing in physical-education classes.

But the controlling factor in the tariff classification of a multiple use article as required by U.S. interpretative rule 1(a) is the principal purpose, activity or use to which a class of article is put in the hands of the entire spectrum of purchasers and users. And the flying disc, by whatever name, continues to be used predominantly as a source of fun, amusement and unique diversion, unfettered by regulations, athletic ability or physical demands, on campuses, beaches, in playgrounds and backyards, and at picnics in the park. In the hands of the majority of users it is an entertaining throw or toss toy, much like the throwing and catching of a toy ball, but with an added unique aerodynamic characteristic. For these reasons it is Customs position that the flying disc is a toy for tariff purposes.

The applicable subheading for the flying disc will be 9503.90.6000, Harmonized Tariff Schedule of the United States (HTS), which provides for other toys (except models), not having a spring mechanism. The duty rate will be 6.8 percent ad valorem.

Articles classifiable under subheading 9503.90.6000, HTS, which are products of Mexico are entitled to duty free treatment under the Generalized System of Preferences (GSP) upon compliance with all applicable regulations.

Section 304 of the Tariff Act of 1930 as amended, states that all articles entering the commerce of the United States must be marked with the country of origin as permanently and conspicuously as the article will permit. The sample submitted to this office was found to be not legally marked.

This ruling is being issued under the provisions of Section 177 of the Customs Regulations (19 C.F.R. 177).

A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is imported. If the documents have been filed without a copy, this ruling should be brought to the attention of the Customs officer handling the transaction.

Sincerely,

Jean F. Maguire

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