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HQ 962582




March 27, 2000

CLA-2 RR:CR:GC 962582 HMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 8543.80.90

Port Director of Customs
700 Doug Davis Dr.
Atlanta, GA 30354

RE: Protest 1704-98-100221; LeapFrog Create-a-Word Traveler

Dear Port Director:

This is our decision on Protest 1704-98-100221, filed against your classification of the Create-a-Word Traveler, also referred to as the Leapfrog Create-a-Word Travel Mat, ("speller"). The entries under protest were liquidated on July 6, 1998, and this protest timely filed on September 30, 1998.

FACTS:

The merchandise under protest is described as an interactive electronic talking toy that teaches the alphabet, phonics, spelling and reading through six games that besides teaching, quizzes the user on the alphabet and phonics. The speller is a battery operated device made of plastic that measures 11"x 8.5"x1." It has the silhouette of a frog's head with the 26 letters or keys of the alphabet in the middle of the frame that the user presses. The keys form four rows of letters, arranged in alphabetical order. Below the alphabet keys is a handle that resembles the frogs mouth.

ISSUE:

Whether the speller is classifiable as other toys under subheading 9503.90.00 , HTSUS.

LAW AND ANALYSIS:

Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). GRI 1 states in part that for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6.

The 1997 HTSUS provisions under consideration are as follows:

8543 Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter; parts thereof: Other machines and apparatus:
8543.89 Other:
Other:
Other:
8543.89.96 Other:

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

9503.90.00 Other

Section XVI, Note 1(p), HTSUS, which includes chapter 85, HTSUS, states that it does not cover articles of Chapter 95, HTSUS. Accordingly, we must first determine whether the subject articles are toys of heading 9503, HTSUS. Heading 9503, HTSUS, applies to toys not specifically provided for in other headings of chapter 95, HTSUS.

Although the term “toy” is not defined in the HTSUS, the General Explanatory Notes ("EN's")

The Harmonized Commodity Description And Coding System EN's constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the EN’s provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise. Customs believes the EN’s should always be consulted. See T.D. 8980, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989). to Chapter 95, HTSUS, provide that Chapter 95 covers toys of all kinds whether designed for the amusement of children or adults. Also, EN 95.03 provides that heading 9503, HTSUS, covers toys intended essentially for the amusement of persons (children or adults).

EN 95.03 also states that

(A) ....Many of the toys of this heading are mechanically or electrically operated.

These include:

(17) Educational toys (e.g., toy chemistry, printing, sewing and knitting sets).

It has been Customs position that the amusement requirement means that toys should be designed and used principally for amusement. Customs has cited various factors to apply, which are suggestive but not dispositive, when determining principal use for amusement. They include: general physical characteristics, the expectation of the ultimate purchaser, channels of trade, and the environment of sale (accompanying accessories, manner of advertisement and display). See Headquarters Rulings (HQ) 957829, 954690, 952296, 956524 and 956160, citing Additional U.S. Rule of Interpretation 1(a).

The Customs Court in Ideal Toy Corp. v. United States, 78 Cust. Ct. 28, 33, C.D. 4688 (1977), Although this case was decided under the Tariff Schedules of the United States, the predecessor to the HTSUS, we believe that this decision is instructive in determining whether the flex lights are principally used for amusement. See H.Rep No. 576, 100th Cong., 2d Sess. 548 (1988) at 550. has determined that when amusement and utility become locked in controversy, the question becomes one of determining whether the amusement is incidental to the utilitarian purpose, or the utility purpose incidental to the amusement. Following this decision, in HQ 088494, dated April 19, 1991, Customs considered the classification of an educational electronic device. The device was designed and marketed to teach children mathematics, vocabulary and other academic skills. Customs determined that the utilitarian value of the device was incidental to the amusement it provided. See also, Childcraft Education Corp. v. United States 742 F.2d 1413 (1984).

Similarly, in this instance, it is our view that the electronic speller's design and marketing suggest that the device will be used principally to teach the alphabet and words. Literature provided with the protest shows that the main purpose of the speller is to teach and quiz children who are within pre-kindergarten and the second grade. We thus find that the educational value of the speller predominates over whatever play value the frog-like features provide to the speller. The merchandise is therefore not described by heading 9503. It is classifiable under subheading 8543.89.96, HTSUS.

HOLDING:

The Create-a-Word Traveler Mat is classifiable under subheading 8543.89.96, HTSUS, as "Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter; parts thereof: Other machines and apparatus: Other: Other: Other: Other."

This protest should be DENIED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the Protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.

Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

John Durant, Director
Commercial Rulings Division


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