HQ 0088744 - Protest and Request for Further Review 2704-88-003280, dated August 17, 1988; Lobo Airboat; model; toy - United States International Trade Commision Rulings

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HQ 088744

Jun 6, 1991

CLA-2 CO:R:C:M 088744 JMH

CATEGORY: CLASSIFICATION

TARIFF NO.: 737.16

District Director
U.S. Customs Service
300 South Ferry St. Terminal Island
Room 2017
San Pedro, CA 90731

RE: Protest and Request for Further Review 2704-88-003280, dated August 17, 1988; Lobo Airboat; model; toy

Dear Sir:

This is in response to Protest and Request for Further Review 2704-88-003280, dated August 17, 1988, concerning the classification of certain toy boats imported by Sears, Roebuck & Company from Taiwan. Our decision follows.

FACTS:

The articles in question are the remote control Lobo Airboat, models 54082, 54090 and 54097. The airboats are designed after actual airboats used in the Florida Everglades. The key feature of these boats is that they are powered by a turbo-fan that allows the boats to skim the water without the use of a propeller. Propellers get caught in the weeds or other surface debris often found in the water of the Everglades.

The marketing literature states that the Lobo Airboats are 1/lOth the scale of actual airboats. The Lobo Airboats are equipped with web style seats that are capable of holding a 3 and 3/4 inch figure (figure not included). The small boats require a racing battery that enables the boats to move both forward and in reverse. The battery and battery recharger are sold separately. The boat is equipped with automatic-out-of-range steering lock that will return the boat to within 100 feet of radio-control range when the boat travels out of the range of the remote control.

The importer entered the Lobo Airboats under item 737.16, Tariff Schedules of the United States ("TSUS"), as "Model trains, model airplanes, model boats, and other model articles, all the foregoing whether or not toys...Other..-" Your office
liquidated the boats under item 737.93, TSUS, as "Toys, and parts of toys, not specially provided...Other..-ToYs having an electric motor..." It is from this classification that the protest arises.

ISSUE:

Whether the Lobo Airboats are classified as models in item 737.16, TSUS, or as toys in item 737.93, TSUS.

LAW AND ANALYSIS:

It is not disputed by the importer that the Lobo Airboat is in fact a toy. Schedule 7, Part 5, Subpart E, Headnote 2, TSUS, states that "a 'toy' is any article chiefly used for the amusement of children or adults." The marketing literature for the Lobo Airboats indicates that the boats are to be used by children for amusement purposes. Therefore, the Lobo Airboats are toys classifiable in item 737.93, TSUS.

However, item 737.16 provides for models, regardless of whether they are also toys. Therefore, if the Lobo Airboats are models, they are properly classified in item 737.16. The leading case on what is a "model" is Lohzin & Born, Inc. v. United States, 79 Cust. Ct. 34, C.D. 4710 (1977). The Customs Court espoused the following rule 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

The importer contends that the Lobo Airboats are models of actual airboats. A picture and literature of actual airboats have been submitted with the protest to support this contention. It is the opinion of this office that the Lobo Airboats are not models, and thus, must be classified as toys.

The determination that the Lobo Airboats are not models is based upon several factors. Headquarters Ruling Letter 066841 ("HQ 066841"), dated June 5, 1981, 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. Headquarters Ruling Letter 068329, ("HQ 068329"), dated June 18, 1981, states
that the commercial designation of an article is "the first and most important tariff classification." HQ 068329, citing Goat and Sheepskin Import, Co. v. United States, T.D. 32254, 5 C.C.P.A. 178 (1914).

The subject airboats are advertised in the product literature as turbo-fan airboats, a particular class of boats. The literature states that the boats are designed at 1/lOth the scale of an actual airboat. However, the literature does not indicate any particular airboat after which the subject airboats are modeled. Therefore, the scale has no specific reference point. The airboats in question are not a model of any specific actual airboat. Although the small boats possess the features which depict or resemble larger airboats, the small airboats must be more than a mere depiction or resemblance to be a model. The Lobo Airboats are a "crude form of a class of articles", however they do not represent any specific boat in existence. The radio remote control Lobo Airports are not models, and thus, must be classified as toys. The proper classification for the Lobo Airboats is item 737.93.

HOLDING:

The Lobo Airboats imported by Sears, Roebuck & Company are marketed not as models of any specific airboats, and thus, the airboats are toys. The proper classification of the Lobo Airboats is item 737.93, as "Toys, and parts of toys, not specially provided...Other...Toys having an electric motor..."

The protest should be denied in full. A copy of this decision should be attached to the Form 19 Notice of Action for the protest.

Sincerely,

John Durant, Director
Commercial Rulings Division

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