HQ 0950401 - Flying Discs - United States International Trade Commision Rulings

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HQ 950401

July 6, 1992

CLA-2 CO:R:C:F 950401 STB

CATEGORY: CLASSIFICATION

TARIFF NO.: 9503.90.6000

District Director of Customs
880 Front Street, Rm 5-S-9
San Diego, CA 92188

RE: Flying Discs

Dear Sir:

This is a decision in response to your memorandum of September 26, 1991 (file: CLA-2-95:S:N:N3D:224-303), in which you forwarded a request for internal advice. Our decision on Internal Advice No. 48-91 is as follows:

FACTS:

The subject merchandise is marketed as "Frisbee", and is described by counsel for the importer as "a saucer-shaped disc made of plastic." It is manufactured in a variety of colors and in various sizes. The standard Frisbee is approximately 9.5 inches in diameter. The importer contends that the Frisbee should be classified as sports equipment and has submitted documentation and a video-tape to support this contention. The documentation includes a publication of the World Flying Disc Federation (WFDF), various articles concerning competitive disc throwing, an article from a sports magazine on the same topic, and other related documents. The video-tape is entitled "The Frisbee Disc Video" and is basically an instructional video which helps teach throws and catches as well as various games such as "Disc Golf." Printing on the box states that "[M]any people enjoy and have enjoyed the thrill of the Frisbee, but few have mastered the art of the disc."

ISSUE:

Whether the Frisbee 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 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 headings are as follows:

(a) 9506, Articles and equipment for gymnastics, athletics, other sports (including table-tennis) or outdoor games,

(b) 9503, 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 Frisbee 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 provide 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 and HRL 950580, dated February 20, 1992, classifying an article marketed as "Grip Ball" as a toy.

It is Customs position that the amusement requirement means that toys are principally used 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 be for amusement; thus the article is classifiable as a toy.

Customs does 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 some schools teach Frisbee tossing in physical- education classes. However, the principle use of the flying disc, by whatever name, continues to be as a source of fun, amusement and unique diversion, unfettered by serious competition or intense testing of ones skills and athletic ability. The Frisbee is most often displayed in stores in the sections which include toys and various unique amusement items rather than in the sports equipment sections. In the hands of the majority of users it is an entertaining throw or toss toy, much like a toy ball, but with an added unique aerodynamic characteristic. Flying discs are used in this manner on campuses, beaches, in playgrounds and backyards, and at picnics in the park.

This ruling is in accord with prior Customs rulings, including Headquarters Ruling Letter (HRL) 037841, dated July 2, 1975, which held, under the similar language of the TSUS, that "the frisbee is classifiable as a toy." Although counsel for the importer has provided more evidence relating to competitive disc throwing than was presented in the earlier rulings, (some evidence was presented in those rulings as well) no definitive evidence is presented that Frisbees, or flying discs in general, are principally used or designed for serious athletic activity.

HOLDING:

The article marketed as "Frisbee" is classified in subheading 9503.90.6000, HTSUSA, the provision for other toys, other, other, other toys not having a spring mechanism. The applicable duty rate is 6.8% ad valorem. You should notify the internal advice applicant of this decision and furnish him with a copy.

Sincerely,

John Durant, Director

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