CLA-2 CO:R:C:F 088694 STB
District Director of Customs
One World Trade Center
Suite 534
Long Beach, CA 90831-0700
RE: Decision on Application for Further Review of Protest No.
2704-90-000900, filed March 2, 1990, concerning the
classification of an electronic educational device.
Dear District Director:
This is a decision on a protest filed March 2, 1990, against
your decision in the classification and liquidation of an
electronic educational device, made October 25, 1989 and
liquidated December 29, 1989.
FACTS:
You classified the subject electronic educational device,
marketed under the name "Words To Go" under subheading
9503.90.6000, HTSUSA, the provision for other toys. Protestant
claims that the merchandise should be classified under subheading
8543.80.9080, HTSUSA, the provision for other electrical
machines.
The subject item consists of a keyboard housed in a plastic
case. The shape of the housing provides a handle to carry the
item. The electronics utilize a printed circuit board to which
various components such as an integrated circuit with
microprocessor and memory capability, capacitors, resistors, etc.
are soldered. The item contains a liquid crystal display. The
item prompts the child to perform various word related tasks,
such as recognizing letters, recognizing words and their
meanings, and determining the next letter in the alphabet after a
sequence of letters has been shown. When the child answers
correctly he is rewarded with graphics and tunes.
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ISSUE:
Whether the subject merchandise should be classified under
subheading 9503.90.6000, HTSUSA, the provision for other toys or
under subheading 8543.80.9080, HTSUSA, the provision for other
electrical machines?
DISCUSSION:
The General Rules of Interpretation (GRI's) set forth the
legal framework in which merchandise is to be classified under
the HTSUSA. GRI 1 requires that classification be determined
first according to the terms of the headings of the tariff and
any relative section or chapter notes and, unless otherwise
required, according to the remaining GRI's taken in order.
Heading 9503, HTSUSA, provides, in pertinent part, for
"[o]ther toys." The Explanatory Notes to Chapter 95 indicate
that "[t]his chapter covers toys of all kinds whether designed
for the amusement of children or adults." The phrase, "designed
for the amusement of" is generally understood to indicate that
the use of an article will be a factor when classification as a
toy is being considered.
Additional U.S. Rule of Interpretation 1(a), HTSUSA,
provides that, absent language to the contrary, the following
applies:
[A] tariff classification controlled by use
(other than actual 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.
Therefore in order to be classified as a toy, the "Words To Go"
item would need to be principally used for amusement. Customs
defines principal use as that use which exceeds each other single
use of the article.
Here, it is our determination that the principal use of the
subject merchandise will not be as a toy. In Ideal Toy Corp. v.
United States, 78 Cust. Ct. 28, C.D. 4688 (1977), the court
stated that "[W]hen 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 is incidental to the amusement." The "Words to
Go" item is basically an electronic version of common flash
-3-
cards. The child/user is asked various types of questions in
various ways, and is expected to provide the answer by pushing a
button on the machine; graphics and sound then inform the user as
to whether or not the correct answer has been provided. In this
manner, the machine acts as a surrogate instructor. If the user
does not answer these questions, there is little amusement to be
had from this item. Educational toys are included in Chapter 95,
HTSUSA, by Explanatory Note (EN) 95.03(A)(17); however, it is
Customs position that items such as the one under consideration
are principally educational and thus are not classifiable as
toys. While the graphics and tunes may provide some amusement,
this amusement is ancillary to the educational function of the
merchandise.
There is no provision in the HTSUSA for "educational
articles" per se. Therefore, the proper classification for this
merchandise is under subheading 8543.80.9080, HTSUSA, the
provision for other electrical machines. This determination is
in accord with Headquarters Ruling Letters (HRLs) 085758, dated
January 2, 1990, and 086577, dated May 4, 1990, both of which
were decided under the HTSUSA.
HOLDING:
The "Words to Go" item is classifiable under subheading
8543.80.9080, HTSUSA, the provision for electrical machines and
apparatus, other machines and apparatus, other, other. The
applicable rate of duty is 3.9% ad valorem.
The protest should be allowed in full. A copy of this
decision should be attached to the Form 19 to be returned to the
protestant.
Sincerely,
John Durant, Director
Commercial Rulings Division