The tariff classification of a Stealth Waveboard from China

N033956 August 13, 2008 CLA-2-95:OT:RR:NC:2:224 CATEGORY: Classification TARIFF NO.: 9506.99.6080 Mr. John M. Peterson Neville Peterson LLP 17 State Street, 19th Floor New York, NY 10004 RE: The tariff classification of a Stealth Waveboard from China Dear Mr. Peterson: In your letter dated July 16, 2008, you requested a tariff classification ruling on behalf of StreetSurfing LLC. A sample of the “The Wave Stealth,” which is similar to a skateboard, was received with your inquiry. Whereas a skateboard has a rigid platform and four wheels, The Wave Stealth has a front and rear flexible panel connected and controlled by a spring-oriented torsion bar. The item also has only two wheels, with each capable of rotating 360 degrees. It is stated that this feature gives one the ability to perform precision maneuvers in small spaces. The item is self-propelled by twisting your hips and shoulders back and forth in an S-shaped rhythmic motion. You state that the “The Wave Stealth” is used by children between the ages of 6 and 12. In addition, you state that the “The Wave Ripple,” which is a smaller scale version of the “Stealth” but for younger children, operates in the same manner and will also be subject to the findings of this ruling. No sample of “The Wave Ripple” was submitted. In your request you suggested that the “The Wave Stealth” should be classifiable as a toy under subheadings 9501.00.40, Harmonized Tariff Schedule of the United States (HTSUS) or, in the alternative, under 9503.90.00, HTSUS rather than subheading 9506.91.00 which provides for other articles and equipment for general physical exercise. However, the aforementioned toy tariff numbers are no longer in use as they have been replaced by 9503.00.0080, HTSUS, which is a basket provision for toys. While you stated that “The Wave Stealth” is designed to be ridden only by children, the importer’s website shows many photos of adults, not children, maneuvering the various styles of “The Wave” in manners and positions that are akin to using a skateboard. Furthermore, some photos show adults using “The Wave” in what appears to be a skateboard park. In addition, the retail packaging states that the maximum weight for the “The Wave Stealth” is 250 lbs, which is significantly more than the average weights of typical 6 to 12 year-olds. While there were photos on the website of children using the “The Wave Ripple,” again, they were in positions and maneuvers similar to those of a person using a skateboard. The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While not legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80. The EN to heading 9503, HTSUS, states, in pertinent part: “This heading covers: (A) Wheeled toys. These articles are usually designed for propulsion either by means of pedals, hand levers or other simple devices which transmit power to the wheels through a chain or rod, or, as in certain cases of certain scooters, direct pressure of a person’s foot to the ground. Other types of wheeled toys may be simply drawn or pushed by another person or driven by a motor.” Headquarters has deemed items of a similar class or kind to the merchandise in this ruling as being excluded from classification as wheeled toys (See HQ 956485 (8/4/94) and HQ W968410 (4/24/07)). Furthermore, “The Wave,” similar to skateboards and the articles in the aforementioned rulings, requires a degree of athletic skill “involving timing, coordination and balance.” With regards to “Other Toys,” the ENs state: “This group covers toys intended for the amusement of persons (children or adults).” Headquarters ruling HQ W968410 states “To be a toy, the character of amusement involved [is] that derived from an item which is essentially a plaything.” “The Wave Stealth” and “Ripple” are not playthings and do not provide the frivolous amusement of a toy. In addition, the Owner’s Manual for “The Wave” reads “Street Surfing can be a dangerous activity….Street Surfing can cause serious injury or even death!” This statement seems to indicate that the item provides more thrills and physical activity than the frivolous amusement of a toy plaything. The EN to heading 9506, HTSUS, states, in pertinent part: “This heading covers: Articles and equipment for general physical exercise… Requisites for other sports and outdoor games (other than toys…), e.g.: (14) Other articles and equipment, such as…skate boards.” “The Wave Stealth” is of the same class or kind as skateboards and will be classified as such. The applicable subheading for the “The Wave Stealth” and “The Wave Ripple” will be 9506.99.6080, HTSUS, which provides for "Articles and equipment for general physical exercise, gymnastics, athletics, other sports…or outdoor games…; swimming pools and wading pools; parts and accessories thereof: Other: Other: Other…Other." The rate of duty will be 4 % ad valorem. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/. This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177). A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist James Forkan at 646-733-3025. Sincerely, Robert B. Swierupski Director National Commodity Specialist Division