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:

(A) **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:

(A) **Articles and equipment for general physical exercise...**

(B) **Requisites for other sports and outdoor games (other than
    toys...), e.g.:**

> \* \* \*
>
> \(14\) Other articles and equipment, such as...skate boards.

(Emphasis in original)

\* \* \*

Land Surf argues that the Pumgo is classifiable under heading 9501,
HTSUS, as a "wheeled toy...designed to be ridden by children." This
provision is limited. First, anything classifiable in that heading must
be a toy. [See]{.underline} 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]{.underline}, 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]{.underline} HQ 967797, dated February 28, 2006.

Second, the article must be designed to be ridden by children.
[See]{.underline} 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]{.underline}, 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]{.underline}*,* 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
muscles...hamstrings\...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[^1]. 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[^2]. 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]{.underline} 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.[^3]" 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[^4].
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

[^1]: http://wonderfulbuys.com/pumgo.asp

[^2]: http://www.pumgo.com/newsroom.htm

[^3]: www.pumgo.com

[^4]: 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.