HQ 0084301 - Decision on Application for Further Review of Protest No. 2904-8-000194. - United States International Trade Commision Rulings

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HQ 084301

September 4, 1990

CLA-2:CO:R:C:G 084301 SR

CATEGORY: CLASSIFICATION

TARIFF NO.: 737.93

District Director of Customs
511 N.W. Broadway Fed. Bldg.
Portland, OR 97209

RE: Decision on Application for Further Review of Protest No. 2904-8-000194.

Dear Sir:

This protest was filed against your decision in the liquidation on September 23, 1988, of entry number R23-0001546-5, dated June 29, 1988, covering a shipment of remote control cars.

FACTS:

The merchandise at issue is a small plastic car that is attached by wire to a hand held battery operated unit that provides power to the car. There are two buttons on the electronic unit that allow the car to function in forward and reverse. The car measures approximately 4 1/2 inches long by 2 1/2 inches wide. It has rubber wheels and metal axles. The car is molded in the shape of a Porsche and is decorated with stickers of the "Porsche" name and insignia.

This merchandise was classified separately as a model car under item 737.1600, TSUS, and a radio control unit under item 686.6060, TSUS. The protestant claims that the car and the control unit should be classified together under item 737.9300, TSUS, which provides for other toys incorporating an electric motor.

ISSUE:

Whether the merchandise at issue is classifiable as a model car and a radio control unit, or as a toy.

LAW AND ANALYSIS:

Item 737.93, TSUS, provides for toys, and parts of toys, not specially provided for, other, toys having an electric motor. Schedule 7, Subpart E headnote 2, TSUS, states that for the purposes of the tariff schedules, a "toy" is any article chiefly used for the amusement of children or adults. Item 737.16, TSUS, provides for model trains, model airplanes, model boats, and other model articles, all the foregoing whether or not toys, other. The Summaries of Trade and Tariff Information, Schedule 7, Volume 4(1968) p.172, stated the following with respect to the model provisions:

The models classifiable under item 737.07 are limited to certain designated articles made to scale of the actual article at a ration of 1 to 85 or smaller; item 737.09 provides for construction kits or sets with construction units prefabricated to precise scale; and item 737.15 covers both models and construction kits or sets not provided for by the two immediately preceding item numbers, including less exact representations of the original articles, but does not go so far as to cover merely the "crude form of a class of articles." [Item 737.15 was previously the provision for other models].

Headquarters Ruling Letter (HRL) 061139, dated September 13, 1979, ruled that a small car that was molded in the shape of a Lancia, with a radio control device, was a toy. The ruling stated that "[a]lmost all toy vehicles bear some resemblance to actual vehicles. To prove that a toy vehicle is a model, similarity should be shown by comparison measurements and illustrations or photographs, of profile, front and top views of the article and the model. There must be a meaningful distinction between models and toys to implement Congressional intent."

No information of this sort was provided with the car at issue. The packaging in which the car is sold advertises the car
as a "STREET RACER;" it is not sold as a scale model "Porsche". The car is a crude copy of a real vehicle. The features, such as door handles, license plates and vents, are merely formed by indents in the plastic. The windows are black plastic, and the headlights do not pop up. The car at issue has the crude form of a real vehicle; it does not have enough intricate detail to be considered a model of a Porsche.

HOLDING:

The merchandise at issue, a small plastic car with an attached battery operated control, are classifiable together under item 737.93, TSUS, as toys, and parts of toys, not specially provided for, other, toys having an electric motor.

The protest should be allowed in full. A copy of this decision should be attached to the Form 19 Notice of Action to satisfy the notice requirement of section 174.30(a), Customs Regulations.

Sincerely,

John Durant, Director

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