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HQ 951850


September 24, 1992

CLA-2 CO:R:C:F 951850 STB

CATEGORY: CLASSIFICATION

TARIFF NO.: 9504.90.4000

District Director of Customs
40 South Gay Street
Baltimore, Maryland 21202

RE: Decision on Application for Further Review of Protest No. 1303-92-100054, filed March 9, 1992, concerning the classification of cars for slot race sets.

Dear Sir:

This is a decision on a protest filed March 9, 1992, against your decision in the classification and liquidation of small cars specifically designed for use with slot car racing sets, entry made on September 17, 1991, and liquidated on February 14, 1992.

FACTS:

You classified the subject cars under subheading 9503.90.6000, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), the provision for other toys (except models) not having a spring mechanism. Protestant claims that the merchandise should be classified under subheading 9504.90.4000, HTSUSA, the provision for other game machines and parts and accessories thereof.

The subject cars are designed to be used with certain electric slot racing sets. The compatible racing sets incorporate challenging track configurations, lap counters, dual track systems, and two independently operated hand controllers which contain rheostat devices that allow players to control the velocity of the race cars. Skill and endurance are required of a player either against the game itself or in competition with another player to meet the challenge of adequately regulating vehicle speed against derailment while attempting to complete the greater number of laps in pursuit of a winning objective.

ISSUE:

Whether the cars are classified as toys or as game machines and parts and accessories thereof?

LAW AND ANALYSIS:

Classification under the 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 EN's to chapter 95, HTSUSA, state at EN 95.04(9) that the game subheading includes "Sets comprising slot-racing motor cars with their track layouts, having the character of competitive games."

For tariff purposes, the term "game" has come to refer to a competition or contest for recreation or amusement between two or more players or between one person and the game itself. A game should involve skill, chance, or endurance, or any combination of these elements and be played according to rules, either expressed or self-evident, with the object of winning as a goal. See Mego Corp. v. United States, 62 CCPA 14, C.A.D. 1137 (1971). Based on this and on other judicial authorities, the Customs Service has consistently maintained that an article will only qualify for inclusion within the scope of the game provisions if it possesses the necessary attributes of a game including challenge, competitiveness, ingenuity, skill, and contest. We have established the following criteria to provide guidance to determine those articles that will be accorded tariff treatment as a game:

1. a competition or contest with the objective of winning;

2. play activity between two or more people or between one person and the game itself;

3. skill, chance, or endurance, or a combination of these elements;

4. some scoring method or system.

In Headquarters Ruling Letter (HRL) 087976, dated December 13, 1990, we stated as follows:

In order to meet the "game" definition, and to possess the "...character of competitive games," slot road sets should incorporate certain elements that demand skill and endurance, and that promote competition or a contest. These elements include a start/finish line, a lap timer, a lap counter where the number of laps completed are recorded, and two independently operated hand controllers which contain rheostat devices (as opposed to an on/off switch) that allow players to control the velocity of the race cars.

As we also noted in the above cited ruling, it is not necessary that a slot road race set contain all of the foregoing features to be considered a game. The present cars, as described herein, are designed for use with sets which contain these features necessary to accomplish the ideal game situation in which skill and endurance are required to achieve an objective or winning result. For a similar ruling on similar merchandise see HRL 951446, dated July 22, 1992.

HOLDING:

The cars are classified in subheading 9504.90.4000, HTSUSA, the provision for other game machines, parts and accessories thereof, dutiable at a rate of 3.9 percent ad valorem.

The protest should be allowed in full. A copy of this decision should be attached to the Form 19 to be returned to the protestant.

Sincerely,

John Durant, Director

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