HQ 951446: Decision on Application for Further Review of Protest No.1303-92-100015, filed January 28, 1992, concerning theclassification of cars for slot race sets.

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 951446

                          July 22, 1992
CLA-2  CO:R:C:F  951446  STB

CATEGORY: Classification

TARIFF NO.: 9504.90.4000

District Director of Customs
40 South Gay Street
Baltimore, Maryland  21202

RE: Decision on Application for Further Review of Protest No.
1303-92-100015, filed January 28, 1992, concerning the
classification of cars for slot race sets.

Dear Sir:

     This is a decision on a protest filed January 28, 1992,
against your decision in the classification and liquidation of
small cars specifically designed for use with slot car racing
sets, entry made on July 17, 1991, and liquidated on November 3,
1991.

FACTS:

     You classified the subject cars under subheading
9503.90.6000, Harmonized Tariff Schedule of the United States
Annotated (HTSUSA), the provision for other toys (except models)
not having a spring mechanism.  Protestant claims that the
merchandise should be classified under subheading 9504.90.4000,
HTSUSA, the provision for other game machines and parts and
accessories thereof.

     The subject cars are designed to be used with certain
electric slot racing sets.  The compatible racing sets
incorporate challenging track configurations, lap counters, dual
track systems, and two independently operated hand controllers
which contain rheostat devices that allow players to control the
velocity of the race cars.  Skill and endurance are required of a
player either against the game itself or in competition with
another player to meet the challenge of adequately regulating
vehicle speed against derailment while attempting to complete the
greater number of laps in pursuit of a winning objective.

ISSUE:

     Whether the cars are classified as toys or as game machines
and parts and accessories thereof?

                               -2-



LAW AND ANALYSIS:

     Classification under the HTSUSA is made in accordance with
the General Rules of Interpretation (GRI's).  The systematic
detail of the harmonized system is such that virtually all goods
are classified by application of GRI 1, that is, 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 GRI's may
then be applied.  The Explanatory Notes (EN's) to the Harmonized
Commodity Description and Coding System, which represent the
official interpretation of the tariff at the international level,
facilitate classification under the HTSUSA by offering guidance
in understanding the scope of the headings and GRI's.     

     The EN's to chapter 95, HTSUSA, state at EN 95.04(9) that
the game subheading includes "Sets comprising slot-racing motor
cars with their track layouts, having the character of
competitive games."

     For tariff purposes, the term "game" has come to refer to a
competition or contest for recreation or amusement between two or
more players or between one person and the game itself.  A game
should involve skill, chance, or endurance, or any combination of
these elements and be played according to rules, either expressed
or self-evident, with the object of winning as a goal.  See Mego
Corp. v. United States, 62 CCPA 14, C.A.D. 1137 (1971).  Based on
this and on other judicial authorities, the Customs Service has
consistently maintained that an article will only qualify for
inclusion within the scope of the game provisions if it possesses
the necessary attributes of a game including challenge,
competitiveness, ingenuity, skill, and contest.  We have
established the following criteria to provide guidance to
determine those articles that will be accorded tariff treatment
as a game:

     1.  a competition or contest with the objective of
         winning;

     2.  play activity between two or more people or
         between one person and the game itself;
  
     3.  skill, chance, or endurance, or a combination
         of these elements;

     4.  some scoring method or system.



                               -3-




     In Headquarters Ruling Letter (HRL) 087976, dated December
13, 1990, we stated as follows:

   
          In order to meet the "game" definition, and to 
          possess the "...character of competitive games," slot
          road sets should incorporate certain elements that
          demand skill and endurance, and that promote          
          competition or a contest.  These elements include a
          start/finish line, a lap timer, a lap counter where
          the number of laps completed are recorded, and two
          independently operated hand controllers which 
          contain rheostat devices (as opposed to an on/off
          switch) that allow players to control the velocity
          of the race cars.

     As we also noted in the above cited ruling, it is not
necessary that a slot road race set contain all of the foregoing
features to be considered a game.  The present cars, as described
herein, are designed for use with sets which contain these
features necessary to accomplish the ideal game situation in
which skill and endurance are required to achieve an objective or
winning result.

HOLDING:

     The cars are classified in subheading 9504.90.4000, HTSUSA,
the provision for other game machines, parts and accessories
thereof, dutiable at a rate of 3.9 percent 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.

                           Sincerely,




                           John Durant, Director