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HQ W968410




April 24, 2007

CLA-2 OT: RR: CTF: TCM W968410 ADK

CATEGORY: CLASSIFICATION

TARIFF NO.: 9506.99.6080

Port Director
United States Customs and Border Protection 4341 International Parkway
Suite 600
Atlanta, GA 30354

RE: The Pumgo Push-Free Skateboard; Protest No. 1704-05-100262

Dear Mr. Fodor:

The following is our decision regarding the Application for Further Review (AFR) of Protest No. 1704-05-100262, timely filed on behalf of Land Surf Inc. (Land Surf) of Atlanta Georgia, concerning classification of the Pumgo Push-Free Skateboard (Pumgo) under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The subject merchandise, The Pumgo, is a push-free skateboard, comprised of a flat board with four attached wheels. To ride the Pumgo, the user places one foot on the front part of the board and one part on the back and pumps the board up and down in a see-saw motion. This repeated back-and-forth movement propels the board forward. The user can drive and steer the Pumgo by shifting his or her weight from the front to the back.

The Pumgo was entered at the Port of Atlanta on three different occasions between October 24, 2004 and November 10, 2004. The Bureau of Customs and Border Protection (CBP) liquidated each entry under subheading 9506.99.6080, Harmonized Tariff Schedule United States Annotated (HTSUSA), which provides for: “[a]rticles and equipment for general physical exercise, gymnastics, athletics, other sports (including table-tennis) or outdoor games, not specified or included elsewhere in this chapter:Other: Other: Other.” Land Surf argues that the proper classification is subheading 9501.00.40, HTSUS, which provides for: “[w]heeled toys designed to be ridden by children:Other.”

ISSUE:

Is the Pumgo a wheeled toy of heading 9501, HTSUS, or an article for general physical exercise of heading 9506, HTSUS?

LAW AND ANALYSIS:

Initially, we note that the matter is protestable under 19 U.S.C. § 1514(a)(2) as a decision on classification. The protest was timely filed, within 180 days of the liquidation of the date of entry made on November 10, 2004 (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)).

Further Review of Protest No. 1704-05-100262 was properly accorded to protestant pursuant to 19 C.F.R. § 174.24 (b) because the decision against which the protest was filed is alleged to involve a question of law or fact which has not been ruled upon by the Commissioner of Customs or his designee or by the Customs courts.

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined 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 2 through 6 may then be applied in order.

It is undisputed that the Pumgo is classifiable in chapter 95, HTSUS, which provides for “toys, games and sports equipment.” The issue arises at the four-digit level. The 2004 HTSUS provisions under consideration are as follows:

9501 Wheeled toys designed to be ridden by children (for example, tricycles, scooters, pedal cars); dolls’ carriages and dolls’ strollers; parts and accessories thereof: Wheeled toys designed to be ridden by children and parts and accessories thereof:

9501.00.40 Other

9506 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:
9506.99 Other:

9506.99.60 Other:

9506.99.6080 Other

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While not legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80. The relevant ENs are as follows:

The general EN to Chapter 95, HTSUS, states, in pertinent part: “This Chapter covers toys of all kinds whether designed for the amusement of children or adults.”

The EN to Heading 95.01, HTSUS, (EN 9501) states, in pertinent part:

This heading covers:

Wheeled toys designed to be ridden by children.

These articles are usually designed for propulsion by the child itself by means of pedals, hand levers or other simple devices which transmit power to the wheels (Emphasis in original)

The EN to heading 9506, HTSUS, (EN 9506) states, in pertinent part:

This heading covers:

Articles and equipment for general physical exercise Requisites for other sports and outdoor games (other than toys), e.g.:

(14) Other articles and equipment, such asskate boards. (Emphasis in original)

Land Surf argues that the Pumgo is classifiable under heading 9501, HTSUS, as a “wheeled toydesigned to be ridden by children.” This provision is limited. First, anything classifiable in that heading must be a toy. See Headquarters Ruling Letter (HQ) 965510, dated July 9, 2002. The term "toy" is also not defined in the HTSUS. However, the general EN for Chapter 95 states that the "[c]hapter covers toys of all kinds whether designed for the amusement of children or adults." To be a toy, the "character of amusement involved [is] that derived from an item which is essentially a plaything." Wilson's Customs Clearance, Inc. v. United States, 59 Cust. Ct. 36, (1967). It has been CBP's position that the amusement requirement means that toys should be designed and used principally for amusement. See HQ 967797, dated February 28, 2006.

Second, the article must be designed to be ridden by children. See HQ 965510. Though this term suggests a use, that use does not control tariff classification entirely. The word "designed," found in many phrases throughout the HTSUS, is "ambiguous, being susceptible of interpretation as 'intended' or as 'particularly and specially constructed.'" Karoware, Inc., v. United States, 564 F. 2d 77, 82 (CCPA 1977). It is well established, however, that whether an article is "specifically designed" or "specially constructed" for a particular purpose is determined by various factors, such as an examination of the article itself, its capabilities, as well as its actual use or uses. See Pacific Trail Sportswear v. United States, 5 C.I.T. 206 (1983).

We first consider whether the Pumgo is a “toy” as required by heading 9501, HTSUS. Land Surf has submitted descriptive literature in support of its AFR. One article, entitled “Don’t Let The Fun Fool You. PUMGO is a Great Workout,” describes the Pumgo as an enjoyable exercise tool. The article quotes a personal trainer as stating that the Pumgo “works on your core strength,” benefits “the 4 quadriceps muscleshamstrings...and even a little bit of [the calves].” A different article, also provided by Land Surf, describes the Pumgo as “an excellent way to get a good work out. Riding Pumgo is a great cardiovascular and leg-muscle workout.”

Market research indicates that the Pumgo was voted the 2004 Sports Product of the Year by the Sporting Goods Manufacturer’s Association
http://wonderfulbuys.com/pumgo.asp. Notably, none of the submitted material refers to the Pumgo as a toy, or an article primarily designed for the user’s amusement. Even Land Surf itself is identified as a “sporting goods company,” not as a toy store http://www.pumgo.com/newsroom.htm. The information establishes that the Pumgo is an article for general physical exercise, not a toy primarily to be used for amusement. The Pumgo fails the first requirement for goods classifiable in heading 9501, HTSUS, and is therefore excluded from the heading. Although an analysis of the second requirement is unnecessary, we nonetheless set forth our reasoning infra as to whether the article is designed primarily for children.

The Pumgo is designed for use by both adults and children. Although children may use the Pumgo, Land Surf’s documentary submissions establish that it is marketed as an exercise tool for people of all ages. According to the Pumgo marketing material:

[b]oth kids and adults can get outside and have a blast without even having to think about exercise (it’s included!).

(Emphasis added)

Without more evidence that the article is designed specifically for children, the Pumgo also fails to satisfy the second requirement for goods classifiable in heading 9501, HTSUS. See HQ 956485, dated August 4, 1994 (Excluding a “Rad Board” from heading 9501, HTSUS, because it was intended to be used by both children and adults).

Land Surf cites HQ 965511, dated July 9, 2002, as evidence that the subject article is properly classifiable under heading 9501, HTSUS. In that case, CBP classified a foot-propelled scooter known as the Power Edge Streetboard. The Power Edge Streetboard was classified under heading 9501, HTSUS, an eo nomine provision for scooters, because it was found to “resemble the foot-propelled scooters that enjoyed popularity in the United States in the 1920’s and 1950’s, as well as other foot-propelled scooters previously classified in heading 9501, HTSUS.” The Pumgo is distinguishable because it is not provided for, eo nomine, nor is it designed primarily for amusement. As a result, the outcome in HQ 965511, does not affect our decision in the present matter.

Upon entry to the United States, the Port at Atlanta classified the Pumgo under heading 9506, HTSUS, as an article of general exercise. Heading 9506, HTSUS, covers “articles and equipment, such as skate boards.” EN 9506. While the Pumgo is not a specifically named in the provision, it is substantially similar to a conventional skateboard, and is even described by Landsurf as “the World's First Human Powered Push-Free Skateboard. www.pumgo.com” CBP has previously classified merchandise similar to skateboards in heading 9506, HTSUS. In HQ 956485, dated August 4, 1994, we held that a sports maneuvering device which required a degree of athletic skill involving timing, coordination and balance, was classified under heading 9506, HTSUS, as an “article of general physical exercise.” The item in that ruling was conceptually and functionally similar to a skateboard and was therefore classifiable under subheading 9506.99.6080, HTSUSA. Like the kickboard, the Pumgo requires a degree of skill that is similar to a skateboard The Frequently Asked Questions section of the Pumgo website offers the following riding instructions: (1) Find a flat and smooth place to ride (2) Put your front foot on the front part of the board above the front wheels (3) Put your back foot on the board over the back wheels. Use or [sic.] wall or a friend to steady yourself at first. (4) Push down on the front of the board to get it rolling. (5) Once you are moving push the board up and down (like a see-saw) to build up speed. (6) The faster you pump the faster it goes.. Accordingly, the Pumgo is classifiable as a skateboard under heading 9506, HTSUS.

HOLDING:

BY application of GRI 1, the Pumgo Push-Free Skateboard is classifiable under heading 9506, HTSUS. Specifically, it is classifiable under subheading 9506.99.6080 HTSUSA, which provides for: “[a]rticles 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.” The column one, general rate of duty is 4 percent ad valorem.

The protest should be DENIED. In accordance with the Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), 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 in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision, Regulations and Rulings of the Office of International Trade will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Director
Commercial and Trade Facilitation Division

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