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HQ H010584




December 18, 2007

CLA-2 OT:RR:CTF:TCM H010584 IDL

CATEGORY: CLASSIFICATION

TARIFF NO.: 9503.80.00

Port Director
U.S. Customs and Border Protection
6747 Engle Road
Middleburg Heights, Ohio 44130

RE: Application for Further Review of Protest No. 4101-07-100045; Automatic Pitching Machine/Batting Trainer

Dear Port Director:

This is our decision regarding the Application for Further Review (“AFR”) of Protest No. 4101-07-100045, timely filed by counsel on behalf of the importer, The Little Tikes Co., against your classification of the “Auto Pitch™ Batting Trainer”, under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The Little Tikes Co. (“protestant”) describes the product as an automatic pitching machine that releases five time-delayed balls in succession. In addition, novices can use the product as an “easy-hit T-ball set”. The product is further described as a “baseball trainer that helps develop hitting skills, muscle tone and hand/eye coordination”. Four “D” alkaline batteries power a built-in motor that operates the automatic pitching machine. The product includes a bat and five balls, and is recommended for children aged three years and older.

During the period covering September 18, 2006 through November 27, 2006, the protestant made eight separate entries of the subject merchandise as “Other toys” in heading 9503, HTSUS. On January 5, 2007, the port liquidated the entries, classifying the goods as “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” in heading 9506, HTSUS. On February 9, 2007, the protestant filed Protest No. 4101-07-100045.

ISSUE:

Whether the Auto Pitch™ Batting Trainer is classified as “Other toys” in heading 9503, HTSUS, or as “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” in heading 9506, HTSUS?

LAW AND ANALYSIS:

Initially, we note that the matter protested is protestable under 19 U.S.C. §1514(a)(2) as a decision on the classification and rate and amount of duties chargeable. The protest was timely filed within 180 days of liquidation of the entries. (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) (2007)). The port properly approved the Application for Further Review, as the protest meets the requirements of 19 CFR § 174.24(a) and (b) and § 174.25.

Merchandise is classifiable under the HTSUS in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the HTSUS is such that most 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 2 through 6 may then be applied in order.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The HTSUS provisions under consideration are as follows:

9503 Other toys

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:

EN 95.03 covers “[t]oy sports equipment, whether or not in sets (e.g., golf sets, tennis sets, archery sets, billiard sets, baseball bats, cricket bats, hockey sticks).” EN 95.03 also includes the following provisions:

Certain toys (e.g., electric irons, sewing machines, musical instruments, etc.) may be capable of a limited “use”; but they are generally distinguishable by their size and limited capacity from real sewing machines, etc.

Collections of articles, the individual items of which if presented separately would be classified in other headings in the Nomenclature, are classified in this Chapter when they are put up in a form clearly indicating their use as toys (e.g., instructional toys such as chemistry, sewing, etc., sets).

Although the term "toy" is not defined in the tariff, the EN to Chapter 95, HTSUS, states, 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", this term has been interpreted by U.S. Customs and Border Protection (CBP) as equating "toys" with articles "designed for the amusement of children and adults." See HQ 963638 (November 2, 2001). Thus, 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, C.D. 3061 (1967).

In the tariff context, "amuse" is mainly used in contrast to some utilitarian or functional quality and the focus is not how the toys are used, but whether they are designed to amuse. It has been CBP’s position that the "amusement" requirement means that a toy should be designed and used principally for amusement and should not serve a utilitarian purpose. HQ 963638.

Further, EN 95.06(B) covers “Requisites for other sports and outdoor games (other than toys presented in sets, or separately, of heading 95.03). [Emphasis added] In the instant case, The Little Tikes Co. is a manufacturer of children’s toys, specializing in “colorful toys, imagination-building toys, durable toys, baby toys, playhouses, infant toys, toddler toys, outdoor toys, and ride-on toys” (excerpt from manufacturer’s organizational statement, as conveyed on www.littletikes.com).

Citing HQ 085059 (November 14, 1990), NY B87227 (July 18, 1997), and NY H89292 (March 13, 2002), the port contends that the subject merchandise should be classified in heading 9506, HTSUS. We have examined the cases cited, and find them unpersuasive with regard to the instant case. We view the subject merchandise as different from the items at issue in those decisions.

Firstly, both NY B87227 and HQ 085059 involve products designed for children significantly older than the age group associated with using the subject merchandise. NY B87227 involved a battery-operated pitching machine designed for children aged seven to ten years. HQ 085059 involved “safety” baseballs designed for children aged nine years and under. By contrast, the subject merchandise is designed for children aged three years and older.

Secondly, as discussed above, it is our position that a toy should be designed and used principally for amusement and should not serve a utilitarian purpose. See HQ 963638. In our view, the items in NY B87227 and HQ 085059 served a significant utilitarian purpose, namely, batting practice and training for older children. In fact, the item in HQ 085059 was specifically designed to improve hitting skills in the context of organized sports, and was classified in heading 735.12, TSUS, a tariff provision combining toys and sports equipment with no equivalent under the HTSUS. Similarly, the item in NY B87227 was properly classified in heading 9506, HTSUS, as “sports equipment”. Accordingly, the items in both decisions are different from the subject merchandise. While it is true that the protestant describes the subject merchandise as helpful toward the development of “hitting skills, muscle tone and hand/eye coordination” for children aged three years and older, we find that any utilitarian purpose is ancillary to its principal design and use as a plaything for the amusement of very young children.

Finally, NY H89292 involved a baseball game “designed principally for outdoor game play”, and included “bases, one foam bat, a fuzzy ball and two catch discs to catch the ball.” [Emphasis added] Since heading 9506, HTSUS, specifically provides for “outdoor games”, the item in NY H89292 could not have been classified as a “toy” in heading 9503, HTSUS, and is different from the subject merchandise.

Accordingly, we view the “Auto Pitch™ Batting Trainer”, marketed for children as young as three years old, as a toy designed for the amusement of very young children. It is distinguishable by its size, operation, and limited capacity from batting trainers classifiable in heading 9506, HTSUS.

HOLDING:

By application of GRI 1, the “Auto Pitch™ Batting Trainer” is classified in heading 9503, HTSUS, and provided for under subheading 9503.80.0000, HTSUSA, as: “Other toys: Other toys and models, incorporating a motor, and parts and accessories thereof”. The column one, general rate of duty under subheading 9503.80.0000, HTSUSA, at the time of entry was “Free”. The protest should be ALLOWED.

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 CBP Form 19, to the counsel for 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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