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HQ 959715




March 11, 1997

CLA-2 RR:TC:FC 959715 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 9506.99.6080

U.S. Customs Port Director
610 S. Canal Street
Chicago, IL 60607

RE: Application for Further Review of Protest 3901-96-101213; "Washers" game, outdoor game; EN 95.06; Mego Corp. v. United States; HRLs 953122, 950401, 037841, 953927 and 950758

Dear Port Director:

The following is our response to the Application for Further Review of Protest 3901-96-101213, concerning your actions in classifying and assessing duty on an article described as a "Washers" game, under the Harmonized Tariff Schedule of the United States (HTS). Literature containing pictures of the subject article was submitted for our review.

FACTS:

You classified the article as a game in subheading 9506.99.6080, HTS, dutiable at the 1995 rate of 4.5 percent ad valorem. The protestant now claims that the article is a toy and is classifiable in subheading 9503.90.0030, HTS, at a free rate of duty.

The article described as a "Washers" game consists of two square landing platforms, two sets of three metal circles resembling washers and a sheet of paper explaining the "Washers" rules of play. The platforms have a series of concentric circles drawn on their face, with the center carved out. Each washer set is a different color. The rules of play state, in pertinent part: The distance between landing platforms should be twenty feet.

SCORING

A) The first player to score a minimum of 21 points is the winner of the game.
B) A coin toss can determine which player throws first. C) The player who most recently scored points shall throw first in the next inning.
D) The player having the first throw in an inning shall throw 3 washers in succession before the other player throws 3 washers.
E) Point Values:

* Each washer which lands on the platform and is closer to the hole than the opponent's is awarded 1 point.

* Each washer thrown into the hole is awarded 3 points. If a player who has thrown one or more washers into the hole also has washers which have landed on the platform which are closer to the hole than his opponent, that person is also awarded points for the closest washer.

* If each payer throws a washer into the hole in the same inning, no player is awarded points for the holed washer. Points are then awarded for the washer closest to the hole.

* Rings have been printed on the surface of the landing platform to assist players in determining which washer is closest to the hole.

* The points shall be scored according to the position of the washers after each player has thrown 3 washers.

DOUBLES GAME

A) Two players are partners and throw from opposite ends of the court against a similar combination of opponents. Partners points are added together.

The entry, made in October 1995, was liquidated on February 16, 1996. A protest was timely filed on May 16, 1996.

ISSUE:

Whether the article should be classified as a toy, or as sports/game equipment.

LAW AND ANALYSIS:

Classification under the HTS is made in accordance with the General Rules of Interpretation (GRIs). 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 (ENs) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTS by offering guidance in understanding the scope of the headings and GRIs.

The two headings under consideration are 9503 and 9506, HTS. Heading 9503, HTS, applies to "other toys," i.e., all toys not specifically provided for in the other headings of chapter 95. Although the term "toy" is not defined in the tariff, the EN to chapter 95 indicates that a toy is an article designed for the amusement of children or adults. Heading 9506, HTS, provides for articles and equipment for gymnastics, athletics, other sports (including table-tennis) or outdoor games. Since sports/game equipment also provides at least some amusement, the proper classification for the instant article is not immediately apparent.

The term "game" as used in the tariff 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 which involves skill, chance, endurance or any combination of these elements and which is played according to rules either expressed or self-evident, with a method or system of scoring and the object of winning as a goal. See, Mego Corp. v. United States, 62 CCPA 14, CAD 1137 (1971). Protestant asserts that the "Washers" game is classifiable under heading 9503, HTS, and cites Headquarters Ruling Letter (HRL) 953122, dated April 22, 1993, in support of that position.

In HRL 953122, Customs classified an article described as the "Splatz" game. The article consisted of two plastic paddles and two air shuttles (shuttlecocks). The paddles had Velcro adjustable straps on the back to secure the hand and the shuttlecocks each had a rubber suction cup attached. "Splatz" is used by gripping the shuttlecock and throwing it like a dart, at the paddle. If the shuttlecock is thrown correctly, the shuttlecock's suction cup portion meets and sticks to the flat side of the paddle. Promotional literature indicated that "a fast paced game of catch" could be played at "distances of 5-75 feet." Customs held that although use of "Splatz" may involve play activity, basic skills, and simple scoring like a game, "Splatz" was principally used to provide amusement to children or adults, not to equip them for competition and winning. For a further discussion of the scope of the tariff term "game" see , HRLs 950401 dated July 6, 1992, and 037841 dated July 2, 1975, classifying frisbees as an other toys; 953927 dated May 30, 1993, classifying POGS (paperboard circular discs) as other printed matter; and 950758 dated January 3, 1992, classifying a mini-court basketball article as a game.

We are of the opinion that unlike "Splatz", "Washers" primary purpose is a contest or competition with a win/loose objective. "Washers" provides for individual as well as team use, involves the skill of accurately throwing the washer, is played according to a set of detailed rules and has a detailed system of scoring both of which are outlined above, and finally the purpose of the activity is to "win". As "Washers" falls within the scope of the tariff term "game", it is classifiable under subheading 9506.99.6080, HTS, 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: Other: Other: Other, Other."

HOLDING:

The protest should be DENIED. The "Washer" game is classifiable under subheading 9506.99.6080, HTS, 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: Other: Other: Other, Other," and has a 1995 column one duty rate of 4.5 percent.

In accordance with section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office to the Protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with this decision must be accomplished prior to the mailing of the decision. Sixty days from the date of this decision, the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and to the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,


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