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HQ 088694

July 10, 1991

CLA-2 CO:R:C:F 088694 STB


TARIFF NO.: 8543.80.9080

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.


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.


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?


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
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.


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.

John Durant, Director

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