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HQ 965734

September 5, 2002

CLA-2 RR: CR: GC 965734 DBS


TARIFF NO.: 8543. 89.96

Ms. Sandi Siegel
M.E. Dey & Co., Inc.
5007 S. Howell
P.O. Box 370080
Milwaukee, WI 53237-0080

RE: Reconsideration of NY E80907; electronic educational devices

Dear Ms. Siegel:

This is in response to your letter dated June 7, 2002, on behalf of Team Concepts, North America, Ltd. (“Team Concepts”), requesting reconsideration of NY E80907, issued to Team Concepts on May 10, 1999. We have reviewed the ruling and find it to be correct.


The subject merchandise, the “Little Learning Frog,” is a battery-operated electronic learning device designed to help teach the alphabet, counting and other cognitive skills to children ages 3 and up. The device is in the shape of a squatting frog, approximately 81/2 inches in height, whose hands hold the ‘command center.’ The command center, located at the frog’s middle section, has window with 8 symbols and 4 buttons on each side that correspond with the symbols. The frog counts to 10, plays music, and “says” pre-programmed phrases.

The device is sold with cards that are inserted into the window, and are designed to be read by the device. On each card are activities that teach the child cognitive skills through matching items on the left side with items on the right side. There are two “games” per card. The frog “speaks” to the child and has a green light and a red light on its face that light up for correct and incorrect answers.

The “Little Learning Frog” is marketed as part of the “ComQuest Electronic Learning” line of products. The advertising on the box states that it “Promotes basic learning,” “Encourages concentration” and “Develops logical thinking and recognition ability.”

In NY E80907, Customs classified the “Little Learning Frog” in subheading 8543.89.96, HTSUS, as other electrical machines not elsewhere specified or included. You contend that it is classifiable in subheading 9503.49.00, HTSUS, as a toy representing animals or non-human creatures.


Whether the “Little Learning Frog” is classifiable as a toy of heading 9503, HTSUS, or an electronic educational device, classifiable in heading 8543, HTSUS, as other electrical machines not elsewhere specified or included.


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 may then be applied.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) may be utilized. ENs, though not dispositive or legally binding, provide commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. Customs believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The 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:


9503 Other toys; reduced-size (“scale”) models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof:
Toys representing animals or non-human creatures (for example, robots and monsters) and parts and accessories thereof:

9503.49.00 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. Although the term “toy” is not defined in the HTSUS, the General Explanatory Notes ("EN's") 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).

Certain toys (e.g., electric irons, sewing machines, musical instruments, etc.) may be capable of a limited “ use ”; but they are generally distinguishable by their size and limited capacity from real sewing machines, etc.

Heading 9503 is a “principal use” provision, insofar as toys should be designed and used principally for amusement. See Minnetonka Brands v. United States, 110 F. Supp. 2d 1020, 1026 (CIT 2000). Customs considers various factors, 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 HQ 962582, dated March 27, 2000, HQ 957829, dated July 3, 1996, HQ 954690, dated September, 5, 1995, HQ 952296, dated December 15, 1992, citing Additional U.S. Rule of Interpretation 1(a), HTSUS.

The Customs Court in Ideal Toy Corp. v. United States, 78 Cust. Ct. 28, 33, C.D. 4688 (1977), 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 two educational electronic devices (“Robo-mate” for ages 3-6 and “Electronic Flashcards” for ages 5 and up). The devices were designed and marketed to teach children mathematics, vocabulary and other academic skills. Customs determined that the amusement value was incidental to the utilitarian purpose of educational advancement. See also Childcraft Education Corp. v. United States 742 F.2d 1413 (1984).

In HQ 962582, Customs classified the “LeapFrog Create-a-Word Traveler” as an educational device classifiable in subheading 8543.89.96, HTSUS, based on a determination that the “educational value of the speller predominates over whatever play value the frog-like features provide to the speller” because of the design and marketing of the merchandise. The merchandise was described as follows:
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.

Customs stated that the design and marketing suggest that the device will be used principally to teach the alphabet and words, and that the literature provided showed that the main purpose of the speller is to teach and quiz young children.

The instant product, “Little Learning Frog,” is similar to the “LeapFrog Create-a-Word Traveler.” The “Little Learning Frog” is clearly marketed as a learning device, being part of the “ComQuest Electronic Learning” line of products, and advertised to “Promotes basic learning,” “Encouraged concentration” and “Develops logical thinking and recognition ability.”

The design of the device also clearly associates the product with a class or kind of good classified as an educational device. The device includes learning game cards that are specifically designed for use in the device. The green and red lights on the face of the frog used for “correct” and “incorrect” answers further suggesting the device is designed for testing, as opposed to playing. While the other sounds such as, “ribbit ribbit,” laughing and music, which are programmed into the device, are amusing, as is the anthropomorphic design of the frog, we find its main purpose is to teach cognitive skills to young children. As such, the principal use is that of an educational device. Further, educational toys of heading 9503, HTSUS, are toys designed to be limited representations of full-size products, as discussed on the ENs. The instant merchandise does not meet such a description. Therefore, the “Little Learning Frog” is not classifiable as a toy of heading 9503, HTSUS.

Educational devices are not specifically provided for in the HTSUS. Heading 8543, HTSUS, provides for other electrical machines and apparatus having individual functions not specified or included elsewhere in the chapter. The EN to heading 8543, HTSUS, states that all electrical appliances and apparatus having individual functions not falling in any other heading in Chapter 85 and not covered more specifically in any other Chapter of the Nomenclature falls under that heading. Therefore, the “Little Learning Frog” is classifiable in heading 8543, HTSUS. NY E80907 is affirmed.


The “Little Learning Frog” is classifiable in subheading 8543.89.96, HTSUS, which provides for “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.”


Myles B. Harmon, Acting Director
Commercial Rulings Division

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