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HQ 963972




December 14, 2001

CLA-2 RR:CR:GC 963972 KBR

CATEGORY: CLASSIFICATION

TARIFF NO.: 8543.89.96

Port Director
U.S. Customs Service
200 N. Mariposa Road
Nogales, AZ 85621

RE: Protest 2604-00-100004; Sega® PICO™ Children’s Computer

Dear Port Director:

This is our decision on Protest 2604-00-100004, filed on behalf of Maxi-Switch, Inc., concerning the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of the Sega® PICO™ Children’s Computer. The entry was liquidated on December 3, 1999, and this protest was timely filed on February 8, 2000.

FACTS:

The protest concerns the Sega® PICO™ Children’s Computer. This is an electronic learning aid for children. It consists of a console or deck, a “magic Pen” accessory, an AC adapter, an AV (audio/video) connector cable, and one software program stored in the memory devices of a ROM cartridge referred to as Sega Pico Storyware™. Additional storyware cartridges may be purchased separately. The storyware cartridges are inserted into the console’s cartridge slot which provides a video signal for displaying visual information on an external display monitor (i.e., a television). The child may use the ‘touch pen’ and four directional keys on the console as manually operated interactive controls to manipulate or alter the display of the image on the monitor. There is also a paper drawing pad located close to the screen. The child may draw on the pad and the picture appears on the monitor screen. The art on the exterior of the box containing the article shows the currently available storyware cartridges including: Disney’s The Lion King, Disney’s 101 Dalmations, A Year at Pooh Corner, Magic Crayons, Richard Scarry’s Huckle and Lowly’s Busiest Day Ever, and Sonic The Hedgehog’s Gameworld. The box states that the article “Plays Like A Video Game! Educates Like A Computer!” and “Over 20 Activities And 8 Developmental Skills Per Storyware™!”

The articles were entered under subheading 9504.10.00, HTSUS. Customs liquidated the entries under subheading 8543.89.96, HTSUS. The protestant asserts the correct classification of the articles is under subheading 9504.10.00, HTSUS.

ISSUE:

What is the classification of the Sega® PICO™ Children’s Computer?

LAW AND ANALYSIS:

Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the HTSUS 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.

In interpreting the headings and subheadings, Customs looks to the Harmonized Commodity Description and Coding System Explanatory Notes (EN). Although not legally binding, they provide a commentary on the scope of each heading of the HTSUS. It is Customs practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The HTSUS headings 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

9504 Articles for arcade, table or parlor games, including pinball machines, bagatelle, billiards and special tables for casino games; automatic bowling alley equipment; parts and accessories thereof:

9504.10.00 Video games of a kind used with a television receiver and parts and accessories thereof:

The ENs to Chapter 95, page 1709, states as follows: "This chapter covers toys of all kinds whether designed for the amusement of children or adults." (emphasis added). Therefore, to be classifiable in chapter 95, the merchandise must have the essential character of an article designed for the amusement of children or adults.

Customs has previously determined that electronic modules which teach functions such as spelling, math, picture identification, colors, shapes, matching and other basic academic skills, even if for the amusement of children and adults, fulfill an educational or learning function. Customs concluded that this type of merchandise was not covered within chapter 95, HTSUS. Because there is no provision in the HTSUS for "educational articles" per se, Customs would classify the electronic module under heading 8543, HTSUS, which provides for: "[e]lectrical machines and apparatus, having individual functions, not specified or included elsewhere. . . ." See HQ 955845 (August 22, 1994); HQ 088694 (July 10, 1991); HQ 088494 (April 19, 1991); HQ 086577 (May 4, 1990); HQ 085758 (January 2, 1990), for rulings involving similar articles.

The advertising on the box of the Sega® PICO™ Children’s Computer states that the article is an educational device and has functions to advance the development of children, albeit in an entertaining manner. Based upon the previous rulings listed above, we conclude that the Sega® PICO™ Children’s Computer is an "educational article" and therefore not classifiable under chapter 95, HTSUS. Further, pursuant to the aforementioned rulings which have classified this type of electronic educational device with amusement qualities in heading 8543, HTSUS, we find that the Sega® PICO™ Children’s Computer is classifiable in subheading 8543.89.96, HTSUS, as an electrical machine and apparatus, having individual functions, not specified or included elsewhere in this chapter, other.

HOLDING:

In accordance with the above discussion, the Sega® PICO™ Children’s Computer is classified in subheading 8543.89.96, HTSUS, as an electrical machine and apparatus, having individual functions, not specified or included elsewhere in this chapter, other.

The protest should be DENIED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, 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.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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