HQ 951446

July 22, 1992

CLA-2 CO:R:C:F 951446 STB

CATEGORY: Classification

TARIFF NO.: 9504.90.4000

District Director of Customs

40 South Gay Street

Baltimore, Maryland 21202

RE: Decision on Application for Further Review of Protest No.

1303-92-100015, filed January 28, 1992, concerning the

classification of cars for slot race sets.

Dear Sir:

This is a decision on a protest filed January 28, 1992,

against your decision in the classification and liquidation of

small cars specifically designed for use with slot car racing

sets, entry made on July 17, 1991, and liquidated on November 3,

1991\.

FACTS:

You classified the subject cars under subheading

9503.90.6000, Harmonized Tariff Schedule of the United States

Annotated (HTSUSA), the provision for other toys (except models)

not having a spring mechanism. Protestant claims that the

merchandise should be classified under subheading 9504.90.4000,

HTSUSA, the provision for other game machines and parts and

accessories thereof.

The subject cars are designed to be used with certain

electric slot racing sets. The compatible racing sets

incorporate challenging track configurations, lap counters, dual

track systems, and two independently operated hand controllers

which contain rheostat devices that allow players to control the

velocity of the race cars. Skill and endurance are required of a

player either against the game itself or in competition with

another player to meet the challenge of adequately regulating

vehicle speed against derailment while attempting to complete the

greater number of laps in pursuit of a winning objective.

ISSUE:

Whether the cars are classified as toys or as game machines

and parts and accessories thereof?

-2-

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with

the General Rules of Interpretation (GRI\'s). The systematic

detail of the harmonized system 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 GRI\'s may

then be applied. The Explanatory Notes (EN\'s) to the Harmonized

Commodity Description and Coding System, which represent the

official interpretation of the tariff at the international level,

facilitate classification under the HTSUSA by offering guidance

in understanding the scope of the headings and GRI\'s.

The EN\'s to chapter 95, HTSUSA, state at EN 95.04(9) that

the game subheading includes \"Sets comprising slot-racing motor

cars with their track layouts, having the character of

competitive games.\"

For tariff purposes, the term \"game\" has come to refer to a

competition or contest for recreation or amusement between two or

more players or between one person and the game itself. A game

should involve skill, chance, or endurance, or any combination of

these elements and be played according to rules, either expressed

or self-evident, with the object of winning as a goal. See Mego

Corp. v. United States, 62 CCPA 14, C.A.D. 1137 (1971). Based on

this and on other judicial authorities, the Customs Service has

consistently maintained that an article will only qualify for

inclusion within the scope of the game provisions if it possesses

the necessary attributes of a game including challenge,

competitiveness, ingenuity, skill, and contest. We have

established the following criteria to provide guidance to

determine those articles that will be accorded tariff treatment

as a game:

1\. a competition or contest with the objective of

winning;

2\. play activity between two or more people or

between one person and the game itself;

3\. skill, chance, or endurance, or a combination

of these elements;

4\. some scoring method or system.

-3-

In Headquarters Ruling Letter (HRL) 087976, dated December

13, 1990, we stated as follows:

In order to meet the \"game\" definition, and to

possess the \"\...character of competitive games,\" slot

road sets should incorporate certain elements that

demand skill and endurance, and that promote

competition or a contest. These elements include a

start/finish line, a lap timer, a lap counter where

the number of laps completed are recorded, and two

independently operated hand controllers which

contain rheostat devices (as opposed to an on/off

switch) that allow players to control the velocity

of the race cars.

As we also noted in the above cited ruling, it is not

necessary that a slot road race set contain all of the foregoing

features to be considered a game. The present cars, as described

herein, are designed for use with sets which contain these

features necessary to accomplish the ideal game situation in

which skill and endurance are required to achieve an objective or

winning result.

HOLDING:

The cars are classified in subheading 9504.90.4000, HTSUSA,

the provision for other game machines, parts and accessories

thereof, dutiable at a rate of 3.9 percent 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