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HQ 960040




January 30, 1998

CLA-2 RR:CR:GC 960040 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 9503.90.0045

Mr. Lee Hardeman
Customs Broker, Inc.
4742 Aviation Pkwy., Suite B
College Park, Georgia 30349

RE: Volley Vests

Dear Mr. Hardeman:

This is in response to your inquiry directed to our New York office, dated November 7, 1996, requesting a binding classification ruling for an article identified as a "volley vest" under the Harmonized Tariff Schedule of the United States (HTSUS). Your letter, together with a sample of the article, was forwarded to our office. We regret the delay in responding.

FACTS:

The "volley vest" consists of a knitted nylon body fitted with a front panel of super-elastic, four-way-stretch lycra. The panel has been reverse-sewn and bar-tacked along the top side for durability. After importation, the articles are sold in sets of 6 (3 red & 3 yellow) with an activity guide The vests are designed to toss back or rebound small objects. The activity guide details numerous volley-oriented games which can be played with the vests. Objects to rebound, such as bean bags or balls, are not sold with the vests. The sets are sold through retail catalogs.

ISSUE:

Whether the volley vests are classifiable as garments, sports pinafores, other toys, a game or other made up textile articles.

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'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 five headings under consideration are:

6211 Track suits, ski-suits and swimwear; other garments

6217 Other made up clothing accessories; parts of garments or of clothing accessories, other than those of heading 6212:

6307 Other made up articles, including dress patterns

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

Section XI of the HTSUS, covers textiles and textile articles and includes Chapters 50 through 63 of the HTSUS. Note 1 (t) to Section XI states, in pertinent part, that: "This section does not cover:...(t) Articles of Chapter 95 (for example, toys, games, sports requisites and nets);..." Therefore, if the volley vests are described by either heading 9503 or 9506, HTSUS, Note 1(t) excludes them from classification in either Chapters 62 or 63, which include headings 6211, 6217 and 6307. Accordingly, we must first determine if the volley vests are classifiable in either heading 9503 or 9506.

The term "toy" is not defined in the tariff. However, in understanding the language of the HTSUS, the Explanatory Notes (EN's) of the Harmonized Commodity Description and Coding System may be utilized. The EN's, 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).

The ENs for Chapter 95 states in pertinent part, that: "[t]his Chapter covers toys of all kinds whether designed for the amusement of children or adults." Although a definition for "toy" does not appear in the HTSUS or the EN's, we believe that the just-quoted passage from the EN's may be interpreted as equating "toys" with articles "designed for the amusement of children or adults," provided such design is corroborated by the articles' principal use. This is not inconsistent with the common dictionary definition of a "toy"--e.g., "any article to play with, esp. a plaything for children" Webster's II New World Dictionary, Third College Edition (1988). The same lexicon defines "amusement" as "something that amuses or entertains" and "amuse" as "to keep pleasantly or enjoyably occupied or interested; entertain." Accordingly, it is our opinion that the articles classified in Chapter 95 as "toys" are those which are designed and principally used to amuse or entertain children or adults.

Because Chapter 95 provides for articles which are classifiable according to the use of the class or kind of goods to which they belong, Additional U.S. Rule of Interpretation 1(a), HTSUS, is applicable. Additional U.S. Rule of Interpretation 1(a) provides that in the absence of special language or a 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. In other words, the article's principal use at the time of importation determines whether it is classifiable within a particular class or kind.

While Additional U.S. Rule of Interpretation 1(a) provides general criteria for discerning the principal use of an article, the U.S. Court of International Trade (CIT) has provided factors, which are indicative but not conclusive, to apply when determining whether merchandise falls within a particular class or kind. They include: general physical characteristics, the expectation of the ultimate purchaser, channels of trade, environment of sale (accompanying accessories, manner of advertisement and display), use in the same manner as merchandise which defines the class, economic practicality of so using the import, and recognition in the trade of this use. See: United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F. 2d 373 (1976), cert. denied, 429 U.S. 979.

Although the activity guide is not included with the volley vests at the time of importation, it does provide the best evidence of the article's principal use. According to the retail catalog description of the activity guide, it details numerous indoor and outdoor activities which can be played with the volley vests. The physical characteristics, in particular the elasticize flap on the volley vests also manifest the volley vest's principal use as a toy, as the elasticize flap's only apparent use is to rebound an object between two people. Furthermore, an advertisement in a retail catalog articulates the volley vest's use as a toy in such phrases as "...[c]reate a New Series of Games That Will Keep Things In Your Program Up In The Air.' These colored vests (Red &Yellow) are great for individual or group activities. Designed...to be used as a simple toss back tool'... " Finally, we note that all of this information indicates that the ultimate purchaser expects to use the article as the device which will allow them to be amused or entertained by rebounding an object between one or more other persons.

As the volley vests are designed and principally used for the amusement of children or adults, they are classifiable as toys, specifically other toys under subheading 9503.90.0045, 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: Other: Other toys and models."
HOLDING:

The volley vests are classifiable under subheading 9503.90.0045, 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: Other: Other toys and models." with a 1998 general column one rate of duty of free.

Sincerely,

John Durant, Director
Tariff Classification Appeals

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