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HQ 088879


April 27, 1992

CLA-2 CO:R:C:F 088879 EAB

CATEGORY: CLASSIFICATION

TARIFF NO.: 3920.69.0000; 3926.90.9050

District Director
U.S. Customs Service
477 Michigan Avenue
Detroit, MI 48226

RE: Application for Further Review of Protest No. 3801-0- 003480, dated November 14, 1990, concerning plastic models; demonstrational models; plastic mirrors; other articles of plastics; HRL 088309

Dear Sir:

This is a decision on a protest filed November 14, 1990, against your decision in the classification of the merchandise in entries liquidated September 14, 1990; October 26, 1990 and August 24, 1990.

FACTS:

The protestant entered all goods in subheading 9023.00.0000, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), a provision for models designed for demonstrational purposes, unsuitable for other uses, subject to a free rate of duty. A rate advance was incurred upon reclassification of the goods to subheading 9503.80.60, which provides for reduced-size models and similar recreational models; other toys and models, incorporating a motor; models, dutiable in 1990 at the general rate of 6.8 percent ad valorem and at the special rate of 5.4 percent ad valorem if qualifying for such rate under the U.S.- Canada Free Trade Agreement. We also note that if the articles are not elsewhere specified or included, they would be properly classifiable under subheading 3926.90.9050, providing for other articles of plastics, other, dutiable at the general rate of 5.3 percent ad valorem.

The protestant informs us that the articles are "marketed through PLASTRUCT to the Architectural, Engineering and Educational Modeling industries, and as such would be used to produce architectural, educational and other demonstrational models." Protestant is of the opinion that the Explanatory Notes to Chapter 95 limit classification therein to models that are of a kind mainly used for recreational purposes, and urges that classification of the subject goods be as originally sought, under subheading 9023.00.0000.

During our review of the documents filed as part of the protest, our attention was drawn to invoices numbered 497 and 498.

By requested facsimile transmission, protestant has advised us that the mirrors listed in invoice 498 are made entirely of "styrene/polyester plastic laminate," and that the descriptive "gold", "silver", "bronze", etc., "merely describe the color of the mirror. Products do not contain any precious metals." Regarding invoice 497, "[t]ree armatures are bare plastic tree frames to which the architectural modeler must then glue colored foam to complete tree * * * None of the boats or models are motorized." We take the foregoing to mean that all of the products are plastic and none of them is motorized.

ISSUE:

What is the proper classification under the HTSUSA of plastic mirrors and models made of plastic and imported for sale to architects, engineers and others to be used as visual aids or three-dimensional representations of two-dimensional drawings, and not as articles of amusement?

LAW AND ANALYSIS:

Merchandise imported into the U.S. is classified under the HTSUSA. The tariff classification of merchandise under the HTSUSA is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which otherwise requires, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUSA and are to be considered statutory provisions of law for all purposes.

GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule (i.e., (1) merchandise is to be classified under the 4-digit heading that most specifically describes the merchandise; (2) only 4-digit headings are comparable; and (3) merchandise must first satisfy the provisions of a 4-digit heading before consideration is given to classification under a subheading within this 4-digit heading) and any relative section or chapter notes and, unless otherwise required, according to the remaining GRI's taken in order.

The Notes to Chapter 90 of the schedule do not provide much detail as to what goods are either included therein or excluded therefrom; however, Note 1.(ij) excludes "Articles of chapter 95." The Notes to Chapter 95 of the schedule generally are exclusionary, necessitating close examination of the particular headings of the chapter to determine what is included (for example, Note 1. states "This chapter does not cover:").

The Explanatory Notes to the Harmonized Commodity Descrip- tion and Coding System represent the official interpretation of the Customs Cooperation Council on the scope of each heading; although neither binding upon the contracting parties to the Harmonized System Convention nor considered to be dispositive interpretations, they should be consulted on the proper scope of the System.

Explanatory Note 90.23 states, in part as follows:

This heading covers a wide range of * * * models designed for demonstrational purposes (e.g., in schools, lecture rooms, exhibitions) and unsuitable for other uses.

Subject to this proviso, the heading includes: (8) Models of towns, public monuments, houses, etc. * * * [emphasis in original]

Based upon the protestant's own admissions, we are of the opinion that the use to which the imported plastic mirrors and models are to be put forecloses them from being classified under subheading 9023.00.0000, HTSUSA. We believe the test of that provision is that demonstrational models are those that are to be used by the importer in schools, lecture rooms or exhibitions. In this case, the importer intends to sell the models to professional third parties who in turn will use such models for demonstration purposes.

All of the goods at issue are plastic. We note that the mirrors listed in invoice 498 range in size from between 4"x 12" and 24"x 36", inclusive, and are made of styrene/polyester plastic laminate. Although referred to as "mirrors," we find these articles do not fit the descriptions of mirrors found in any of headings 7009 (glass mirrors), 8306 (mirrors of base metal) and 9002 (optical elements), HTSUSA. Whether the "mirrors" are in fact styrene laminated with a polyester or styrenated polyester laminate, pursuant to Note 4, chapter 39 (if no single comonomer predominates, then polymer blends are to be classified in the heading which occurs last in numerical order), we are of the opinion that they are most specifically described in heading 3920, HTSUSA, a provision for other sheets of plastics not laminated with other materials, rather than heading 3907, a provision for other polyesters in primary form (which one would back into from heading 3926, a residual provision for other articles of headings 3901 to 3914). We are of the further opinion that the "mirrors" are not reduced-size models, in consideration of our following discussion of the other goods that are the subject of this protest.

Explanatory Note 95.03(B) advises that the phrase "Reduced- size ('scale') models and similar recreational models" "includes models of a kind mainly used for recreational purposes * * *."

As the importer has indicated, the subject merchandise is not used for recreational purposes, but is used to demonstrate in three dimensions the spacing, texture and relationship of planned building projects. In view of this, we are of the opinion that, in and of themselves, the subject goods are not models, but crude representations made of plastics of actual things. cf. HRL 088309 (January 6, 1992).

Heading 3926, HTSUSA, describes in part other articles of plastics.

We are of the opinion that the subject plastic mirrors were properly classifiable under subheading 3920.69.0000, HTSUSA (1990), a provision for other sheets of plastics not laminated with other materials, of other polyesters, of other polyesters. Such articles were dutiable in 1990 at the general rate of 4.2 percent ad valorem and the special rate of 3.3 percent ad valorem if qualified for special treatment under the U.S.-Canada Free Trade Agreement.

We are of the opinion that the remainder of the subject merchandise was properly classifiable under subheading 3926.90.9050, HTSUSA (1990), a provision for other articles of plastics; other; other; other. Such articles were dutiable in 1990 at the general rate of 5.3 percent ad valorem and the special rate of 4.2 percent ad valorem if qualified for special treatment under the U.S.-Canada Free Trade Agreement.

HOLDING:

You are instructed to deny the protest, except to the extent reclassification of the merchandise as indicated above results in a partial allowance.

Plastic mirrors were properly classifiable under subheading 3920.69.0000, HTSUSA (1990), a provision for other sheets of plastics not laminated with other materials, of other polyesters, of other polyesters. Such articles were dutiable in 1990 at the general rate of 4.2 percent ad valorem and the special rate of 3.3 percent ad valorem if qualified for special treatment under the U.S.-Canada Free Trade Agreement.

Other articles of plastics that are crude representations of actual things were properly classifiable under subheading 3926.90.9050, HTSUSA (1990), a provision for other articles of plastics; other; other; other. Such articles were dutiable in 1990 at the general rate of 5.3 percent ad valorem and the special rate of 4.2 percent ad valorem if qualified for special treatment under the U.S.-Canada Free Trade Agreement.

A copy of this decision should be attached to the Customs Form 19 and provided to the protestant as part of the notice of action on the protest.

Sincerely,

John Durant, Director

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