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HQ 958869




May 13, 1998

CLA-2 RR:CR:GC 958869 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 9503.80.2000

U.S. Customs Service
Port Director
300 S. Ferry Street
Terminal Island, CA 90731

RE: Protest 2704-94-101476; "Pop-Up Wackaroos"

Dear Port Director:

This is our decision on Protest 2704-94-101476, concerning your action in classifying and assessing duty on an article identified by Fisher Price, Inc. as "Pop-Up Wackaroos," model 2401, under the Harmonized Tariff Schedule of the United States (HTSUS). Literature from the protestant's catalog containing a picture and descriptions of the subject article was submitted for our review. In preparing this decision consideration was also given to arguments presented by counsel for the protestant in a meeting held on November 16, 1996. We regret the delay in responding.

FACTS:

"Pop-Up Wackaroos" consists of a small plastic base unit and a rubber mallet. The cover of the unit has 5 cavities which house 5 small "heads." A battery operated motor inside the unit causes the "heads" to rise out of the cavities in a random pattern. A large red button in the bottom left corner of the unit turns the motor "on" and "off." A plastic holder for the rubber, two-headed, "accordion-style" mallet is attached between the cover and the base of the unit. If a child hits all of the "heads" with the mallet in the correct order, the sound device in the center of the unit makes bells and buzzer sounds.

The description in the catalog states:

Pop-Up Wackaroos 3-7yrs. Kids love to try to knock these crazy characters down. Press the button to set the characters in motion, then pound them down with a rubber mallet. Knock all of the Wackaroos down and electronic bells and buzzers sound. Requires two "C" batteries (not included). Ea. enclosed color gift box. 12" l x 10.75" h x 3.375" d. 6 pcs. per 12.5lb. shipper.

The catalog divides preschool articles into the following categories: "Preschool," "Preschool Electronics," "Preschool Games," "Preschool Ride-Ons," "Preschool Sports," and "Preschool Outdoor Toys." "Pop-Up Wackaroos" is listed in the "Preschool" section.

The article was classified as a toy under subheading 9503.80.2000, HTSUS, dutiable at the 1993 rate of 6.8 percent ad valorem. Protestant claims that the article is classifiable as a game under subheading 9504.90.4000 HTSUS, dutiable at the 1993 rate of 3.9 percent ad valorem. The entries, made in September and November of 1993, as well as January of 1994, were liquidated on February 18 and 24th 1994, and May 6, 1994. The protest was timely filed on May 18, 1994.

ISSUE:

Whether "Pop-Up Wackaroos" should be classified as a toy, or as a game.

LAW AND ANALYSIS:

Classification under the HTSUS 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 GRIs may then be applied. The headings under consideration are:

9503 [o]ther toys; reduced-size ("scale") models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof

9504 [a]rticles for funfair, table or parlour games, including pintables, billiards, special tables for casino games and automatic bowling alley equipment

The term "toy" is not defined in the HTSUS. However, in understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, 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 FR 35127, 35128 (August 23, 1989).

The ENs to Chapter 95, HTSUS, state, in pertinent part, that "[t]his Chapter covers toys of all kinds whether designed for the amusement of children or adults." Although not set forth as a definition of "toys," we have interpreted the just-quoted passage from the ENs as equating "toys" with articles "designed for the amusement of children or adults," although we believe such design must be corroborated by evidence of the articles' principal use.

When the classification of an article is determined with reference to its principal use, Additional U.S. Rule of Interpretation 1(a), HTSUS, provides that, in the absence of special language or context which otherwise requires, such 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), HTSUS, provides general criteria for discerning the principal use of an article, it does not provide specific criteria for individual tariff provisions. However, 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. United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F. 2d 373 (1976), cert. denied, 429 U.S. 979.

The term "game," as used in the tariff, refers to a competition or contest for recreation or amusement, between two or more players or between one person and the game itself, involving skill, chance, endurance or any combination of these elements, 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).

In Headquarters Ruling Letter (HRL) 953122, dated April 22, 1993, 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 of the player 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" involved 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.

In HRL 950401, dated July 6, 1992, Customs classified Frisbees as other toys. Customs recognized that competitive disc throwing had reached a certain level of popularity and that flying discs like the Frisbees were used in organized competition and in recreational "pick-up" games. However, Customs held that the principle use of a Frisbee continued to be as a source of fun, amusement and unique diversion, unfettered by serious competition or intense testing of ones skills and athletic ability. This conclusion was based upon the fact that Frisbees are most often displayed in stores in the sections which include toys and various unique amusement items rather than in the sports equipment sections, and continue, in the hands of the majority of users to be used as an entertaining throw or toss toys, much like a toy ball, but with an added unique aerodynamic characteristic.

Finally, in HRL 953927, dated May 30, 1993, POGS (paperboard circular discs) were classified as other printed matter. POGS are circular discs of paperboard, 1-11/16 inches in diameter and 0.0415 of an inch in thickness. One side is printed with text and a picture, by a process described as "offset printing." The name POG is derived from Passion fruit, Orange and Guava. Similar discs were originally used to cap a drink made from these fruits. POGs are sometimes used to play a game, however the principal use of POGs in the United States was determined to be as a collectible.

We are of the opinion that like "Splatz," "Frisbees," and "POGS," "Pop-Up Wackaroos" is not principally designed to equip the user for competition and winning. "Pop-Up Wackaroos" has no scoring system. It isn't "played" according to a set of rules nor is the primary purpose of the game to win. Rather, the primary purpose of the game is two-fold; to provide amusement and developmental skills by helping a young child develop eye-hand coordination and amusing in the process with bright colors and pleasant, rewarding sounds. This analysis is confirmed by protestant's own classification of the article not as a preschool game, but rather as a toy. As the article does not meet the definition of "game," it is not classifiable as such. As "Pop-Up Wackaroos" is principally used for development and amusement, it is classifiable under subheading 9503.80.2000, HTSUS, as a toy.

HOLDING:

The protest should be DENIED. "Pop-Up Wackaroos" is classifiable under subheading 9503.80.2000, HTSUS, which provides for "[o]ther toys; reduced-size ("scale") models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof: [o]ther toys and models, incorporating a motor, and parts and accessories thereof: [t]oys," with a 1993 duty rate of 6.8 percent ad valorem.

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,

John Durant, Director
Commercial Rulings Division

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