# HQ 962582

March 27, 2000

CLA-2 RR:CR:GC 962582 HMC

CATEGORY: Classification

TARIFF NO.: 8543.80.90

Port Director of Customs

700 Doug Davis Dr.

Atlanta, GA 30354

RE: Protest 1704-98-100221; LeapFrog Create-a-Word Traveler

Dear Port Director:

This is our decision on Protest 1704-98-100221, filed against your
classification of the Create-a-Word Traveler, also referred to as the
Leapfrog Create-a-Word Travel Mat, (\"speller\"). The entries under
protest were liquidated on July 6, 1998, and this protest timely filed
on September 30, 1998.

FACTS:

The merchandise under protest is described as an interactive electronic
talking toy that teaches the alphabet, phonics, spelling and reading
through six games that besides teaching, quizzes the user on the
alphabet and phonics. The speller is a battery operated device made of
plastic that measures 11\"x 8.5\"x1.\" It has the silhouette of a
frog\'s head with the 26 letters or keys of the alphabet in the middle
of the frame that the user presses. The keys form four rows of letters,
arranged in alphabetical order. Below the alphabet keys is a handle that
resembles the frogs mouth.

ISSUE:

Whether the speller is classifiable as other toys under subheading
9503.90.00 , HTSUS.

LAW AND ANALYSIS:

Merchandise is classifiable under the HTSUS in accordance with the
General Rules of Interpretation (GRIs). GRI 1 states in part that for
legal purposes, classification shall be determined according to the
terms of the headings and any relative section or chapter notes, and
provided the headings or notes do not require otherwise, according to
GRIs 2 through 6.

The 1997 HTSUS provisions under consideration are as follows:

8543 Electrical machines and apparatus, having individual functions, not
specified or included elsewhere in this chapter; parts thereof:

Other machines and apparatus:

8543.89 Other:

Other:

Other:

8543.89.96 Other:

\* \* \* \*

9503 Other toys; reduced-size (\"scale\") models and similar
recreational models, working or not; puzzles of all kinds; parts and
accessories thereof:

9503.90.00 Other

Section XVI, Note 1(p), HTSUS, which includes chapter 85, HTSUS, states
that it does not cover articles of Chapter 95, HTSUS. Accordingly, we
must first determine whether the subject articles are toys of heading
9503, HTSUS. Heading 9503, HTSUS, applies to toys not specifically
provided for in other headings of chapter 95, HTSUS.

Although the term "toy" is not defined in the HTSUS, the General
Explanatory Notes (\"EN\'s\")[^1] to Chapter 95, HTSUS, provide that
Chapter 95 covers toys of all kinds whether designed for the amusement
of children or adults. Also, EN 95.03 provides that heading 9503, HTSUS,
covers toys intended essentially for the amusement of persons (children
or adults).

EN 95.03 also states that

> \(A\) \....Many of the toys of this heading are mechanically or
> electrically operated.

These include:

> \(17\) Educational toys (e.g., toy chemistry, printing, sewing and
> knitting sets).

It has been Customs position that the amusement requirement means that
toys should be designed and used principally for amusement. Customs has
cited various factors to apply, which are suggestive but not
dispositive, when determining principal use for amusement. They include:
general physical characteristics, the expectation of the ultimate
purchaser, channels of trade, and the environment of sale (accompanying
accessories, manner of advertisement and display). [See]{.underline}
Headquarters Rulings (HQ) 957829, 954690, 952296, 956524 and 956160,
citing Additional U.S. Rule of Interpretation 1(a).

The Customs Court in *Ideal Toy Corp. v. United States*, 78 Cust. Ct.
28, 33, C.D. 4688 (1977),[^2] has determined that when 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 incidental to the amusement. Following
this decision, in HQ 088494, dated April 19, 1991, Customs considered
the classification of an educational electronic device. The device was
designed and marketed to teach children mathematics, vocabulary and
other academic skills. Customs determined that the utilitarian value of
the device was incidental to the amusement it provided. *See also,
Childcraft Education Corp. v. United States* 742 F.2d 1413 (1984).

Similarly, in this instance, it is our view that the electronic
speller\'s design and marketing suggest that the device will be used
principally to teach the alphabet and words. Literature provided with
the protest shows that the main purpose of the speller is to teach and
quiz children who are within pre-kindergarten and the second grade. We
thus find that the educational value of the speller predominates over
whatever play value the frog-like features provide to the speller. The
merchandise is therefore not described by heading 9503. It is
classifiable under subheading 8543.89.96, HTSUS.

HOLDING:

The Create-a-Word Traveler Mat is classifiable under subheading
8543.89.96, HTSUS, as \"Electrical machines and apparatus, having
individual functions, not specified or included elsewhere in this
chapter; parts thereof: Other machines and apparatus: Other: Other:
Other: Other.\"

This protest should be DENIED. In accordance with Section 3A(11)(b) of
Customs Directive 099 3550‑065, dated August 4, 1993, Subject: Revised
Protest Directive, 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 or entries in accordance
with the decision must be accomplished prior to mailing the decision.

Sixty days from the date of the decision, the Office of Regulations and
Rulings will make the decision available to Customs personnel, and to
the public on the Customs Home Page on the World Wide Web at
www.customs.ustreas.gov, by means of the Freedom of Information Act, and
other methods of public distribution.

Sincerely,

John Durant, Director

Commercial Rulings Division

[^1]: The Harmonized Commodity Description And Coding System EN\'s
    constitute the official interpretation of the Harmonized System.
    While not legally binding on the contracting parties, and therefore
    not dispositive, the EN's provide a commentary on the scope of each
    heading of the Harmonized System and are thus useful in ascertaining
    the classification of merchandise. Customs believes the EN's should
    always be consulted. See T.D. 89‑80, 54 Fed. Reg. 35127, 35128 (Aug.
    23, 1989).

[^2]: Although this case was decided under the Tariff Schedules of the
    United States, the predecessor to the HTSUS, we believe that this
    decision is instructive in determining whether the flex lights are
    principally used for amusement. *See* H.Rep No. 576, 100th Cong., 2d
    Sess. 548 (1988) at 550.