CLA-2 CO:R:C:M 087599 MBR
Mr. Ned H. Marshak
Sharretts, Paley, Carter & Blauvelt, P.C.
67 Broad Street
New York, N.Y. 10004
RE: Internal Advice 6/90; Educational Electronic Learning Device
for Children; Smart Start; Whiz Kid; Magic Math Machine;
Electrical Machines and Apparatus
Dear Mr. Marshak:
This is in reply to your letter of November 30, 1989, on
behalf of K Mart Corp., requesting Internal Advice regarding
classification of the Smart Start, the Whiz Kid, and the Magic
Math Machine, under the Harmonized Tariff Schedule of the United
States Annotated (HTSUSA).
FACTS:
The Smart Start is an electronic educational learning device
for children ages 5 to 8, designed to teach the following
subjects: mathematics, reading, vocabulary, geography, object
identification, and music. Its packaging promotes it as "An
interactive pre-computer learning machine." It has a 31 key
keyboard and a LED display screen. One "Smart Start Matchbook"
is included which contains 150 questions to be answered by
striking keys on the Smart Start machine. Twelve additional
"Matchbooks" are available separately. The workbook is used in
conjunction with the machine, guiding the user through the
various matching and identification exercises. Correct answers
are rewarded with a musical salute. As each section is
completed, a numerical score is displayed on the LED screen, and
can be recorded in a section provided in the book. The workbook
suggests that the scoring is a good way to keep track of the
user's learning progress. This machine operates on batteries.
The Whiz Kid is an electronic educational learning device
for children ages 4 and older, designed to teach the following
subjects: math, spelling, music, logic, and to teach children how
to use a computer. The Whiz Ki-2-
keyboard with 46 keys, and an animated LCD screen. The machine
does have a limited memory storage capability. The machine
includes a program cartridge and 50 program cards. To use the
machine, the program cartridge must be inserted into the right
side of the machine and then one of the program cards (cardboard)
must be inserted into the simulated disc drive slot. Additional
program cartridges and cards are available separately. If a
correct answer is given, a bird flies around the screen and a
musical tune is emitted, and then the next question appears.
This machine operates on batteries.
The Magic Math Machine is designed to teach mathematics.
There are 81 rectangular plastic keys. Appearing on each key
face is a mathematical equation. When the key is depressed onto
a post below, the answer becomes visible through the opaque
plastic. This machine is not electric.
ISSUE:
What are the classifications of the "Smart Start," the "Whiz
Kid," and the "Magic Math Machine" educational devices for
children, under the Harmonized Tariff Schedule of the United
States Annotated (HTSUSA)?
LAW AND ANALYSIS:
The General Rules of Interpretation (GRI's) to the HTSUSA
govern the classification of goods in the tariff schedule. GRI 1
states, in pertinent part:
...classification shall be determined according to the terms
of the headings and any relative section or chapter notes...
The Smart Start and Whiz Kid are prima facie classifiable
under the following headings:
8472 Other office machines (for example, hectograph or stencil
duplicating machines, addressing machines, automatic
banknote dispensers, coin-sorting machines, coin-counting or
wrapping machines, pencil-sharpening machines, perforating
or stapling machines).
* * * * * * * * * * * * *
9504 Articles for arcade, table or parlor games, including
pinball machines, bagatelle, billiards and special tables
for casino games; automatic bowling alley equipment.
* * * * * * * * * * * * *
9503 Other toys; reduced-size ("scale" models and similar
recreational models, working or not; puzzles of all kinds;
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and accessories thereof.
* * * * * * * * * * * * *
8543 Electrical machines and apparatus, having individual
functions, not specified or included elsewhere in this
chapter.
Subheading 8472.90.80, HTSUSA, provides for: "[o]ther office
machines: [o]ther." The other office machines that are provided
for eo nomine are:"[a]utomatic bank note dispensers and other
coin or currency handling machines; [p]encil sharpeners;
[n]umbering, dating and check-writing machines; [o]ther. The
Harmonized Commodity Description and Coding System Explanatory
Notes (EN) to heading 84.72, page 1302, state:
The term "office machines" is to be taken in a wide
general sense to include all machines used in offices,
shops, factories, workshops, schools, railway stations,
hotels, etc., for doing "office work" (i.e., work
concerning the writing, recording, sorting, filing,
etc., of correspondence, documents, forms, records,
accounts, etc.). (Emphasis added).
The heading includes, inter alia: (1) Duplicating machines;
(2) Addressing machines; (3) Ticket issuing machines; (4) Coin
sorting or coin-counting machines; (5) Automatic banknote
dispensers; (6) Pencil sharpening machines; (7) Punching
machines; (8) Machines for perforating paper bands so that they
can be used in automatic typewriting machines; (9) Perforated
band operated machines. Clearly, these are all machines that are
to be used for office work.
The Whiz Kid and the Smart Start are designed and marketed
for the exclusive use of children ages four years and older. We
find it improbable that children, four years and older, will be
using these machines for office work.
The EN for chapter 95 (regarding toys, games and sports
requisites), page 1585, states: "This chapter covers toys of all
kinds whether designed for the amusement of children or adults."
Therefore, to be classifiable in chapter 95, the merchandise must
have the essential character of an article designed for the
amusement of children or adults.
There is no question that these articles are designed and
marketed as devices to teach children mathematics, vocabulary,
etc., and that parents purchase them as educational tools for
their children. Although these devices may have automatic
scoring and a "musical salute," these features alone do not mean
that the Speller was designed for the amusement of children.
Furthermore, the ultimate consu-4-
same basic skills taught in school, as the parents intended.
Although certain aspects of school can be amusing, we do not
agree that school is designed for the amusement of children.
Therefore, we find that the essential character of these articles
is that of a learning device and not that of a toy designed to
amuse.
The Customs Court addressed the distinction between
amusement and utility in Ideal Toy Corp. v. United States, 78
Cust.Ct. 28, 33, C.D. 4688 (1977):
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 is incidental to the amusement.
In the instant case, we find that the limited amusement
value of the Whiz Kid and Smart Start is incidental to the
utilitarian purpose of educational advancement.
In Childcraft Education Corp. v. United States, 742 F.2d
1413 (1984), the U.S.Court of Appeals for the Federal Circuit
addressed the classification of educational merchandise for
children that used programmed cards in a question and answer
format. The Court found that such educational merchandise is not
classifiable under the provision for "other toys."
It has also been asserted that heading 9503, HTSUSA,
provides for "educational toys" because the EN, page 1587 states:
This heading covers:
(A) All toys not included in headings 95.01 and 95.02.
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).
However, we do not agree that "toy" chemistry, printing,
sewing and knitting sets have the essential character of learning
devices. The operative word here is "toy." The EN, page 1588,
also states:
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.
Additionally, the EN states:
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Collections of articles, the individual items of which if
presented separately would be classified in other headings
in the Nomenclature, are classified in this Chapter when
they are put up in a form clearly indicating their use as
toys (e.g., instructional toys such as chemistry, sewing,
etc., sets). (Emphasis added).
Therefore, those items of "limited use" and those items that
are "put up in a form clearly indicating their use as toys," are
classifiable as toys. Thus the enumerated "toy" chemistry,
printing, and sewing sets are of limited use and/or are put up in
a form clearly indicating their use as toys.
However, the Smart Start and the Whiz Kid are not limited
use devices nor are they put up in a form clearly indicating
their use as toys. Many articles that are designed for the use
of children are not classifiable as toys.
It has also been argued that these devices are properly
classifiable under subheading 9504.10.00, HTSUSA, which provides
for: "[a]rticles for arcade...: [v]ideo games of a kind used with
a television receiver and parts thereof." Although they do have
some game features, i.e., scoring, the essential character of
these machines is not that of a game, but that of a learning
device. Learning is the purpose of this machines, not
competition or winning. Thus, due to the essential character of
these devices, for the same reasons they are not properly
classifiable as toys, they are not classifiable as games.
The Smart Start and the Whiz Kid are therefore classifiable
under subheading 8543.80.90, HTSUSA, which provides for:
"[e]lectrical machines and apparatus, having individual
functions, not specified or included elsewhere in this chapter;
[o]ther." See HQ 088086 (February 7, 1991), HQ 086577 (May 4,
1990), HQ 086649 (May 4, 1990), and HQ 085758 (January 2, 1990),
for similar holdings regarding similar merchandise.
For the same reasons above, the Magic Math Machine is not
classifiable under the provision for toys. However, it is not an
electrical machine. Its composition is almost entirely of
plastic. Counsel argues that it is properly classifiable under
heading 3924, HTSUSA, which provides for: "[t]ableware,
kitchenware, other household articles, of plastics." However,
this is not a household article, nor is it in any way similar to
any of the articles enumerated in this heading, the subsequent
subheadings, or the EN regarding this heading. Therefore, the
Magic Math Machine is classifiable under subheading 3926.90.90,
HTSUSA, which provides for: "[o]ther articles of plastics and
articles of other materials of headings 3901 to 3914: [o]ther:
[o]ther."
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HOLDING:
The Smart Start and the Whiz Kid are classifiable under the
provision for electrical machines and apparatus in subheading
8543.80.90, HTSUSA.
The Magic Math Machine is classifiable under subheading
3926.90.90, HTSUSA, which provides for: "[o]ther articles of
plastics and articles of other materials of headings 3901 to
3914: [o]ther: [o]ther."
Sincerely,
John Durant, Director
Commercial Rulings Division