NY 866817: The tariff classification of a flying disc from Mexico

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                               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
                                 Area Director
                                 New York Seaport