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Court Identifies Five Features for Classification as a Wheeled Toy

Tuesday, September 30, 2014
Sandler, Travis & Rosenberg Trade Report

The Court of International Trade issued Sept. 22 a decision that lays out several characteristics of goods classifiable as wheeled toys, which are duty-free when entered into the U.S. The CIT uses these criteria to determine that items known as waveboards are properly classified under HTSUS 9506.99.60 as sports equipment (4 percent duty).

The waveboards at issue are described in the plaintiff’s patent as a skateboard having a front board, a rear board, a connecting element between the two boards and at least one direction caster mounted on the underside of each board. They are propelled by the rider pushing his back foot forward or back or moving the whole board in a transverse wave motion, allowing the rider to move uphill as well as downhill.

The Explanatory Notes expressly list skateboards as covered by HTSUS heading 9506, and U.S. Customs and Border Protection classified the waveboards under HTSUS 9506.99.60. The plaintiff protested, arguing for classification as other wheeled toys under HTSUS 9503.00.00 (duty-free). The CIT notes that an item’s classification as a toy under HTSUS heading 9503 requires it to be principally used as a toy, which includes articles whose principal use is amusement, diversion or play, and the plaintiff insisted that the waveboards are in fact principally used for amusement.

However, the CIT states that heading 9503 does not cover every item with wheels that is principally used for amusement and that a wheeled toy is also characterized by the following features: (1) the absence of a training requirement prior to its use; (2) the absence of a meaningful risk of injury involved in its use; (3) the lack of acquired skill needed to fully utilize the item; (4) the lack of a reasonable degree of exercise or physical activity in the item’s use; and (5) the presence of an assistive device (e.g., additional wheels, handlebars, pedals). Because the waveboards do not meet these criteria, the court concludes, they lack the necessary elements for classification as wheeled toys.

In fact, the CIT concludes, because the waveboards do require a certain degree of training and skill and afford the user a reasonable degree of physical activity, they conform to the additional features that characterize those items properly classified as sporting goods under heading 9506. In reaching this decision the CIT rejects the plaintiff’s argument that waveboards cannot be classified as sports equipment because waveboarding is not a sport as it does not possess set rules or regular competition. Previous rulings make clear that an activity qualifies as a sport when it involves the element of enjoyment or recreation arising from the development or practice of individual skills, the court states, and competition or a set of organized rules are not essential to this determination.

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