CLA-2 OT:RR:CTF:TCM H177797 LWF
Port Director
U.S. Customs & Border Protection
Port of Champlain
237 West Service Road
Champlain, NY 12919
Attn: Tammy Pinsonneault, Senior Import Specialist
Re: Internal Advice Request; Classification of miniature wooden hockey sticks from Canada
Dear Port Director:
This ruling is in response to your memorandum dated July 5, 2011, forwarding a Request for Internal Advice initiated by United Parcel Service of America, Inc. (“UPS”), on behalf of its client, Sher-wood Hockey, Inc. (“Sher-wood”). At issue is the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of miniature wooden hockey sticks.
The Request is sought based upon Sher-wood’s receipt of a letter from the National Commodity Specialist Division (NCSD) of U.S. Customs and Border Protection (CBP) on June 9, 2011, stating that CBP was precluded from ruling on an issue which is the subject of a current or completed transaction and advising Sher-wood to seek advice from Headquarters through the Internal Advice procedure.
Prior to this ruling, Sher-wood has entered the miniature wooden hockey sticks under two subheadings: subheading 4420.10.00, HTSUS, which provides for “Wood marquetry and inlaid wood; caskets and cases for jewelry or cutlery and similar articles, of wood; statuettes and other ornaments, of wood; wooden articles of furniture not falling within chapter 94: Statuettes and other ornaments, of wood” and subheading 4421.90.97, HTSUS, which provides for “Other articles of wood: Other: Other.”
FACTS:
The merchandise at issue consists of miniature wooden hockey sticks from Canada. Counsel for Sher-wood identifies the miniature hockey sticks as “Mini Hockey Sticks” and indicates that they range in size from 21 to 37 inches in length. The Mini Hockey Sticks are shaped similar to traditional player and goalie hockey sticks. However, they lack many of the features of full-sized hockey sticks (e.g., size, weight, flex, curved or angled blade, and taper between shaft and blade). The Mini Hockey Sticks are decorated with plain, solid coats of paint or varnish, and some are also printed with the logos of professional hockey teams.
Counsel states that the Mini Hockey Sticks are intended for use by children aged 3 to 12 years, and Sher-wood’s product catalogue contains a picture of a child using a Mini Hockey Stick to play knee hockey. Sher-wood drills a small hole at the top of each Mini Hockey Stick which allows the sticks to be hung on a merchandise display for sale to consumers. Mass merchants, specialty stores, and professional hockey teams typically sell the Mini Hockey Sticks for retail prices between $12.99 and $15.99.
ISSUE:
What is the proper classification of the miniature wooden hockey sticks?
LAW AND ANALYSIS:
Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the HTSUS is such that most 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 of chapter Notes. In the event that goods cannot be classified solely on the basis of GRI 1, and if the heading and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.
The HTSUS subheadings under consideration are as follows:
4420 Wood marquetry and inlaid wood; caskets and cases for jewelry or cutlery and similar articles, of wood; statuettes and other ornaments, of wood; wooden articles of furniture not falling within chapter 94:
4420.10.00 Statuettes and other ornaments, of wood…
* * * * *
4421 Other articles of wood
4421.90 Other:
Other:
4421.90.97 Other…
* * * * *
9503.00.00 Tricycles, scooters, pedal cars and similar wheeled toys; dolls’ carriages; dolls, other toys; reduced-scale (“scale”) models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof…
* * * * *
Note 1(p) to chapter 44, HTSUS, states: “This chapter does not cover: Articles of chapter 95 (for example, toys, games, sports equipment).”
The Explanatory Notes to the Harmonized Commodity Description and Coding System (ENs) represent the official interpretation of the tariff at the international level. While neither legally binding nor dispositive, the ENs provide a commentary of the scope of each heading of the HTSUS, and are generally indicative of the proper interpretation of these headings. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989)
The EN to heading 9503, HTSUS (EN 95.03), states, in pertinent part, that the heading includes:
(D) Other toys.
…
(ix) Toy sports equipment, whether or not in sets (e.g., golf sets, tennis sets, archery sets, billiard sets; baseball bats, cricket bats, hockey sticks).
* * * * *
Heading 4420, HTSUS, provides, in part, for statuettes and other ornaments of wood. Heading 4421, HTSUS, provides for other articles of wood. As is pertinent here, Note 1(p) to chapter 44, HTSUS, states that articles of chapter 95, HTSUS, are excluded from classification in chapter 44, HTSUS. Therefore, prior to considering classification of the Mini Hockey Sticks in heading 4420, HTSUS, or heading 4421, HTSUS, we must first determine whether the Mini Hockey Sticks can be classified in heading 9503, HTSUS, as a toy.
Heading 9503, HTSUS, provides, in pertinent part, for “other toys.” The term “toy” is not defined in the HTSUS. However, case law provides guidance on the types of articles that are properly classified in heading 9503, HTSUS. In Minnetonka Brands v. United States, 110 F. Supp. 2d 1020, 1026 (Ct. Int’l Trade 2000), the U.S. Court of International Trade (CIT) concluded that heading 9503, HTSUS, is a “principal use” provision within the meaning of Additional U.S. Rule of Interpretation 1(a), HTSUS. Additional U.S. Rule of Interpretation 1(a), HTSUS, provides that:
In the absence of special language or 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 good belong, and the controlling using is the principal use.
Therefore, classification in heading 9503, HTSUS, is controlled by the principal use of goods of the class or kind to which the imported goods belong at or immediately prior to the date of the importation. Id. In Lenox Collections v. United States, 20 Ct. Int’l Trade 194, 196 (1996), the CIT held that principal use is “the use which exceeds any other single use.”
In Minnetonka, the court determined that a toy must be designed and used principally for amusement and should not serve a utilitarian purpose. See 110 F. Supp. at 1026. EN 95.03(D) also states that the principal use of a toy is “for the amusement of persons (children or adults).” In Ideal Toy Corp. v. United States, 78 Cust. Ct. 28, 33 (1977), the U.S. Customs Court (predecessor to the U.S. Court of International Trade) held that when amusement and utility become locked in controversy, the question is whether the amusement is incidental to the utilitarian purpose, or vice versa. Thus, to be classified as a toy in heading 9503, HTSUS, an article must belong to the class or kind of goods which are principally used for amusement.
To determine whether an article is included in a particular class or kind of merchandise, CBP considers a variety of factors, including: (1) the general physical characteristics of the merchandise; (2) the channels, class or kind of trade in which the merchandise moves (where the merchandise is sold); (3) the expectation of the ultimate purchasers; (4) the environment of the sale (i.e., accompanying accessories and marketing); (5) usage, if any, in the same manner as merchandise which defines the class. See United States v. Carborundum Co., 536 F.2d 373, 377 (Cust. Ct. 1976) (the “Carborundum factors”).
With respect to the physical characteristics of the instant merchandise, the design of the Mini Hockey Sticks is similar to that of a full-size hockey stick. They consist of a flat handle and blade face and are suitable for playing the game of mini hockey (also commonly known as “knee hockey”). Sher-wood’s catalogue depicts substantially similar miniature hockey sticks that are sold with an accompanying foam puck or ball for the purpose of playing mini hockey.
Nonetheless, the instant merchandise also differs from full-size hockey sticks. Although the Mini Hockey Sticks share the same basic shape as their full-size counterparts, the Mini Hockey Sticks possess flat, skinny handles and non-curved blades, neither of which are typical of full-sized hockey sticks. Many of the sticks also feature painted team logos and designs suitable for ornamental display that can be easily scratched or damaged during an actual floor hockey or ice hockey game. Unlike full-sized sticks, a hole is drilled into each of the Mini Hockey Sticks handles that allows the sticks to be hung for display. However, because these characteristics co-exist with the Mini Hockey Sticks’ suitability for use in the game of mini hockey, this factor is inconclusive in our analysis.
Likewise, the channels of trade in which the Mini Hockey Sticks are sold is not determinative of the merchandise’s principal use. Counsel states that the Mini Hockey Sticks are sold by mass merchants, specialty stores, and professional hockey teams. However, retailers’ websites list the Mini Hockey Sticks and substantially similar plastic and composite miniature hockey sticks in a variety of categories, including “Sports & Outdoors,” “Accessories,” “Games & Collectibles,” and “Collectibles.” The categories in which the Mini Hockey Sticks are sold show that retailers recognize both the amusement and ornamental display characteristics of the merchandise. Sher-wood includes pictures of Mini Hockey Sticks displayed for sale as souvenirs on page 8 of its 2011 catalogue, yet also advertises substantially similar merchandise for sale as toys on pages 16-18 of the same catalogue. Further highlighting the dual-nature of the Mini Hockey Sticks, online hockey specialty store Monkey Sports, Inc. not only promotes a mini hockey set containing two plastic miniature hockey sticks and a foam ball for use in mini hockey games, but also advertises that the same set is “perfect for autographs.” As a result, we find that the divergent channels of trade in which the Minis Hockey Sticks are not determinative of the principal use of the merchandise.
Mini Hockey Sticks and substantially similar items are advertised as both toys and souvenir collectibles. As such, we find that the manner in which they are advertised does not favor either function. For that reason, we find it reasonable to conclude that the purchaser of a Mini Hockey Stick would expect to use it for purposes of amusement as a toy or as a souvenir decorative ornament.
Although the Mini Hockey Sticks are sold individually and without accessories, the environment of sale of substantially similar products favors classification of the merchandise as toys. Sher-wood’s 2011 catalogue advertises several products that contain miniature hockey sticks that are substantially similar to the wooden Mini Hockey Sticks at issue. These items feature plastic or composite miniature hockey sticks that are sold individually or in sets. The sets are listed in Sher-wood’s catalogue under the “NHL® Toys+,” “NHL® Toy Packs,” and “NHL® Mini Net” product lines and consist of one or more flat miniature hockey sticks, a foam ball or puck, and in some instances, a miniature goal net. Additionally, the “NHL® Mini Net” sets are described as “ideal for playing mini hockey games.” We note that although both the wooden and plastic miniature hockey sticks feature a small hole in the handle making them suitable for hanging, none of the merchandise is sold with nails, screws, or other hardware accessories to facilitate the ornamental display of the sticks. Consequently, based upon the similarities between the miniature hockey sticks contained in the sets and the instant merchandise, we find that the sale of accessories related to the game of mini hockey favors classification of the Mini Hockey Sticks as toys.
The individual Carborundum factors indicate that the Mini Hockey Sticks can be used for both amusement and ornamental purposes. When considered in total, however, the Carborundum factors support a finding that the Mini Hockey Sticks belong to a class of goods principally used for amusement and should be classified as toys. In particular, we refer to the general physical characteristics of the Mini Hockey Sticks and the accessories with which substantially similar merchandise is sold. The fact that the Mini Hockey Sticks and substantially similar miniature hockey sticks resemble traditional hockey sticks, are advertised for use in mini hockey games, and are frequently sold with balls, pucks, and nets suitable for use in games of mini hockey is convincing evidence that the merchandise belongs to a class of goods principally used for amusement.
Subheading 9503.00.00, HTSUS, provides for “Tricycles, scooters, pedal cars and similar wheeled toys; dolls’ carriages; dolls, other toys; reduced-scale (“scale”) models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof.” EN(D)(ix) to heading 9503, HTSUS, states, in pertinent part, that the term “other toys” is used to describe a class of toys “intended essentially for the amusement of persons (children or adults).” The EN specifically includes toy sports equipment and lists toy hockey sticks as an example.
Inasmuch as the Mini Hockey Sticks are described fully in heading 9503, HTSUS, as toys, their classification in a heading of chapter 44, HTSUS, is precluded.
HOLDING:
By application of GRI 1, the wooden Mini Hockey Sticks are provided for in heading 9503, HTSUS. Specifically, they are classifiable in subheading 9503.00.00, HTSUS, which provides for “Tricycles, scooters, pedal cars and similar wheeled toys; dolls’ carriages; dolls, other toys; reduced-scale (“scale”) models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof.” The column one, general rate of duty under this provision in 2011 is free.
You are to mail this decision to counsel for the internal advice requester no later than sixty days from the date of this decision. At that time, the Office of International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public, on the CBP Home Page at http://www.cbp.gov, by means of the Freedom of Information Act, and other methods of publication.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division