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HQ 959885




December 30, 1997

CLA-2 RR:CR:GC 959885 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 9503.90.0030

Mr. Herbert J. Lynch
Sullivan & Lynch, P.C.
156 State Street
Boston, MA 02109

RE: NYRL A85392 revoked; Kick Sacks, foot bags

Dear Mr. Lynch:

On July 16, 1996, New York Ruling Letter (NYRL) A85392 was issued to your client CYRK Inc., in which we classified a footbag described as a "kick sac" under the Harmonized Tariff Schedule of the United States (HTSUS). In NYRL A85392 your client was advised that the kick sacs were classifiable under heading 9506, HTSUS, which provides for "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." Upon further examination, we are of the opinion that this particular footbag known as a "kick sac" is properly classified in heading 9503, HTSUS, which provides for "Other toys; reduced-size ("scale") models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof."

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), notice of the proposed revocation of NYRL A85392 was published, on November 19, 1997, in the Customs Bulletin, Volume 31, Number 47. No comments were received in response to the notice.

FACTS:

The foot bag, described as a "kick sac", consists of a ball shaped 2 paneled PVC shell which is filled with plastic pellets. It measures approximately 2 inches in diameter. It has the same texture or "feel" as a bean bag. The "kick sac" is imported by a company which manufactures and imports wearing apparel and promotional products. The purpose of the "kick sac" is to continually kick it and keep it from falling to the ground. This can be done alone or in a group. These "kick sacs" will be used as promotional items for a large company.

ISSUE:

Whether the footbags known as "kick sacs" are classifiable as sports equipment or as toys.

LAW AND ANALYSIS:

Classification under the Harmonized Tariff Schedule of the United States (HTSUS), is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined 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 may then be applied.

The headings under consideration are:

9503 Other toys; reduced-size ("scale") models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof

9506 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

In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive, or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See, T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

Although the term "toy" is not specifically defined in the tariff, the EN's to Chapter 95 state 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, certain requisites for fishing, hunting or shooting, and roundabouts and other fairground amusements.

Chapter 95 divides "toys" and "game equipment" into two separate headings, 9503 and 9506, respectively.

EN 95.03, states, in pertinent part, that:

This heading covers:

(A) All toys not included in headings 95.01 and 95.02. Many of the toys of this heading are mechanically or electrically operated.

These include:

...(8) Toy sports equipment, whether or not in sets (e.g., golf sets, tennis sets, archery sets, billiard sets, baseball bats, cricket bats, hockey sticks)....

EN 95.06 states, in pertinent part, that:

This heading covers:

...(B) Requisites for other sports and outdoor games (other than toys presented in sets, or separately, of heading 95.03), e.g.:

(3) Golf clubs and other golf equipment, such as golf balls, golf tees.

(4) Articles and equipment for table-tennis (ping-pong), such as tables (with or without legs), bats (paddles), balls and nets.

(5) Tennis, badminton or similar rackets (e.g., squash rackets), whether or not strung.

(6) Balls, other than golf balls and table-tennis balls, such as tennis balls, footballs, rugby balls and similar balls (including bladders and covers for such balls); water polo, basketball and similar valve type balls; cricket balls...

(8) Sticks and bats for hockey, cricket, lacrosse, etc.; chistera (jai alai scoops); pucks for ice hockey; curling stones.

(9) Nets for various games (tennis, badminton, volleyball, football, basketball, etc.)

(14) Other articles and equipment, such as requisites for deck tennis, quoits or bowls; skate boards; racket presses; mallets for polo or croquet; boomerangs; ice axes; clay pigeons and clay pigeon projectors; bobsleighs (bobsleds), luges and similar non-motorised vehicles for sliding on snow or ice....

As noted above, Chapter 95 divides "toys" and "game equipment" into two separate headings. As a result, a classification problem arises concerning the question of amusement. It is Customs position that, based on the exemplars of both ENs, for an article to be classifiable as a "toy" it must be used principally for amusement. Customs defines principal use as that use which exceeds each other single use of the article.

Toys may include balls which are imitations of the real thing or are not primarily used for sporting or athletic equipment. The distinction between the two rests significantly with the physical characteristics of the particular ball. Competitive "footbag" or "hacky sack" has reached a certain level of popularity and can be organized competition, both in sanctioned meets an in recreational "pick-up" games. Competitive footbags are designed in geometric patterns which give the article the proper consistency, shape, size and weight necessary for the sport. Competitive footbags are constructed with several panels, as many as 36. Furthermore, their shells are usually constructed of heavy, durable material such as leather or suede and are stitched together with strong, durable yarn. In contrast, the present "kick sacs" are constructed of PVC which deteriorates rapidly especially if used on rough surfaces. Furthermore, the ball only has 2 panels so it turns soft quickly thereby loosing its consistency.

The physical characteristics of these particular "kick sac" footbags indicates that they will be used as a source of fun, amusement and unique diversion, unfettered by serious competition or intense testing of ones skills and athletic ability. In the hands of the majority of users these "kick sacs" are an entertaining throw or toss toy, much like a bean bag. We are of the opinion that these particular "kick sac" footbags cannot reasonably be used in the sport of footbag kicking because of their lack of durability and physical integrity. The "kick sac" footbag therefore, is properly classified as a toy in heading 9503, HTSUS.

HOLDING:

The "kick sacs" are classifiable under subheading 9503.90.0030, HTSUS, which provides for "Other toys; reduced-size ("scale") models and similar recreational models, working or not; puzzles of all kinds; and accessories thereof: Other, Other: Other toys (except models), not having a spring mechanism," with a column one free rate of duty.

NYRL A85392 is revoked. In accordance with 19 U.S.C. 1625(c)(1), this ruling will become effective 60 days after its publication in the Customs Bulletin. Publication of rulings or decisions pursuant to 19 U.S.C. 1625(c)(1) does not constitute a change of practice or position in accordance with section 177.10 (c)(1), Customs Regulations [19 CFR 177.10(c)(1)].

Sincerely,

John Durant, Director
Commercial Rulings Division

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