HQ 0088309 - Decision on Application for Further Review of Protest No. 2501-90-000012, filed February 1, 1990, concerning the classification of three miniature plastic cars from Mexico. - United States International Trade Commision Rulings

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HQ 088309

January 6, 1992

CLA-2 CO:R:C:F 088309 STB

CATEGORY: CLASSIFICATION

TARIFF NO.: 9503.90.6000

District Director of Customs
880 Front St.
Room 5-S-9
San Diego, CA 92188

RE: Decision on Application for Further Review of Protest No. 2501-90-000012, filed February 1, 1990, concerning the classification of three miniature plastic cars from Mexico.

Dear Sir:

This is a decision on a protest filed February 1, 1990, against your decision in the classification and liquidation of three miniature plastic cars, designed for use with "Barbie" dolls, entry made on July 17, 1989 and liquidated on November 3, 1989.

FACTS:

You classified the plastic 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 9503.90.7020, HTSUSA, the provision for model airplanes, model boats, and other models, made to a scale of the actual article at the ratio of 1 to 85 or smaller. If the articles are classified as claimed by protestant, they will be entitled to duty free entry under the Generalized System of Preferences (GSP) (the items are manufactured in Mexico).

The three items under consideration are the Barbie '57 Chevy, the Barbie Ferrari, and the Jazzie Volkswagen Cabriolet. Samples of the three items and catalog promotions were provided. The '57 Chevy is approximately 25-1/2 inches in length, 9 inches wide and 5 inches in height. There is room for four Barbie dolls to sit in the seats. The plastic body is light blue ("baby- blue") and the plastic interior is pink. Some parts of the automobile must be assembled (easy snap-on) including various detail adding items that are constructed of plastic and are chrome silver in color; these include hub caps, door side
molding, decorative rear side molding and hood ornaments among others. Imprinted on the rear side molding is the name "Bel Air." The trunk opens and the tires roll. The hood, however, does not open and neither do the doors. The dashboard is molded plastic and provides no real detail; detail is added by paper stickers representing dashboard items. Paper stickers are also provided to represent the headlights, certain hood and trunk ornaments, the material of the seats, and a license plate that reads "BARBIE." The item has no detail on the underside to represent such items as the chassis, shock absorbers, etc. Instead, the appearance is one of toy-like molded plastic. There is nothing to represent an engine. The '57 Chevy, is, however, the most detailed of the three.

The catalog advertises the Barbie Ferrari to be a "detailed replica of a 328 GTS Ferrari!" In actuality, the Ferrari has little detail. The passenger seats, headlights, reflectors, hood ornament, side moldings, and a "BARBIE" license plate, are represented by the use of paper stickers. A sticker with the "Ferrari" logo is also provided. The Ferrari is smaller than the '57 Chevy and it seats only two dolls.

The Jazzie Volkswagen Cabriolet also has little detail and is a rather crude representation of the actual vehicle. The doors do not open and the only "detail" provided is in the form of paper stickers representing dashboard items, reflectors, headlights, etc.

The three items are not marketed as "models" per se and no size scales are listed in the marketing material or on the boxes.

ISSUE:

Whether the Barbie cars should be classified as other toys (except models) or as models?

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 an 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 competing provisions in this case are as follows:

1. Subheading 9503.90.6000, HTSUSA, the provision for other toys (except models), not having a spring mechanism, and

2. Subheading 9503.90.7020, HTSUSA, the provision for model airplanes, model boats, and other models, made to a scale of the actual article at the ratio of 1 to 85 or smaller.

It is clear that the instant merchandise is designed for amusement; therefore, if it is determined that the subject items can be classified as models, they will be classified in Chapter 95 and particularly in subheading 9503.90.7020, HTSUSA. If it is determined that these vehicles do not qualify as models, they will be classified in subheading 9503.90.6000, HTSUSA as other toys.

The primary determination that must be made, then, is whether the subject merchandise should be classified as models. When the TSUS was in effect, the court defined the term "model" in the case of Lohzin & Born, Inc. v. United States, 79 Cust. Ct. 34, C.D. 4710 (1977). The Customs Court stated the following regarding the term "model":

[To be a model] an article need not be an exact or accurate representation of something in existence; it is sufficient if it is more than a crude form of a class of articles and recognizably represents an article that existed in fact or legend. Lohzin & Born, Inc. v. United States, 79 Cust. Ct. 34 at 41, C.D. 4710

There is no language in the HTSUSA or the Explanatory Notes to indicate that this court decision is not applicable under the HTSUSA; nor have there been any subsequent court decisions that would cast doubt on the applicability of Lohzin. Since Lohzin several Customs rulings have been issued which have interpreted the above definition and many of those are referred to herein.

The importer claims that these vehicles are models because they are representations of specific models of automobiles that exist in fact, i.e., a 1957 Chevrolet Bel-Air, a 328 GTS Ferrari and a Volkswagen Cabriolet Convertible. Presented as primary proof that these items accurately (or at least somewhat accurately) represent the actual automobiles is the fact that the automobile companies gave the importer permission to use the names of the automobiles and the automobile companies in the marketing of the Barbie cars; these names also appear on the
miniature vehicles themselves by way of stickers and other accessories which can be affixed by the consumer. The importer further contends that the detail raises the items above a "crude form" of the actual automobiles and that, although the vehicles are not marketed as being to an actual scale, they are, in fact, manufactured to a certain scale relative to the real thing. In a submission dated July 31, 1991, counsel for the importer states that the Barbie Ferrari and the Volkswagen Cabriolet are made to a scale of 1 to 6.5 and the '57 Chevy Bel Air is made to a scale of 1 to 6. Counsel also states that although the vehicles are constructed to scale, the miniature versions do have enlarged passenger areas to facilitate the placement of Barbie therein.

It is our determination, however, that these items are not more than crude representations of the actual vehicles. In Headquarters Ruling Letter (HRL) 066841, dated June 5, 1981, we discussed the Lohzin decision and stated the following:

...in our opinion the fact that a model can easily or reasonably be related to a specific prototype does not by itself mean that it is not crude. Further, the court did not exempt models in this category from the requirement that they must also be more than crude representations. It is our view that more than prototype recognition is necessary for an article to be regarded as a model, and that some degree of refinement is required to bring an article into the model class.

The position taken in HRL 066841, as described above, is required of Customs because there must be some dividing line between toys and models; otherwise there would not be different national breakouts for "models" and "other toys." Many toy vehicles look somewhat like actual vehicles and thus the need for the "detail" distinction which Customs has utilized on a regular basis. The Lohzin decision does not overturn the basic distinction between toys and models. The lack of detail present on the subject merchandise, as described in the "facts" section illustrates the crude nature of these vehicles.

Additionally, HRL 066841 states that the intention of the manufacturer as to the class of merchandise to be produced must be examined. This intention can be learned from the nature of the marketing of the article, the construction of the article, and the detailing of the article in question. HRL 066841 held that the simple construction of the article, together with the toy manufacturer's trademark as a prominent feature on the wheels and the nature of the marketing of the article as a subordinate part of another toy package were all factors that worked against
the classification of the vehicle as a model. HRL 068329, dated June 18, 1981, states that the commercial designation of an article is "the first and most important tariff classification." HRL 068329, citing Goat and Sheepskin Import, Co. v. United States, T.D. 32254, 5 C.C.P.A. 178 (1914). HRL 084301 dated September 4, 1990, finding that a battery powered small plastic car was a toy, based its conclusion on the packaging and advertising of the vehicle and the lack of intricate detailing.

The Barbie cars have certain similarities to the merchandise that Customs refused to classify as models in HRL 066841. Although the vehicles are not sold as a subordinate part of another toy package, as are the cars of HRL 066841, the Barbie cars are clearly marketed for use with the Barbie dolls and other Barbie toys and are designed for that purpose. The "Barbie" license plate stickers that are included with the cars, the fact that the cars are not advertised as being constructed to any particular scale and the fact that the model year of only one of the items is even mentioned on the box ('57 Chevy) further illustrates the intention of the manufacturer to produce toys for use with Barbie dolls and not items in the model car category.

In sum, the lack of detail (crude nature) and the marketing of the subject merchandise are important factors which necessitate the determination that the Barbie cars should be classified as other toys and not as models.

HOLDING:

The Barbie '57 Chevy, the Barbie Ferrari, and the Jazzie Volkswagen Cabriolet are classified in subheading 9503.90.6000, HTSUSA, the provision for other toys (except models) not having a spring mechanism. The applicable duty rate is 6.8% ad valorem.

The protest should be denied. A copy of this decision should be attached to the Form 19 to be returned to the protestant.

Sincerely,

John Durant, Director

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