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HQ 958895




October 21, 1996

CLA-2 RR:TC:MM 958895 RFA

CATEGORY: CLASSIFICATION

TARIFF NO.: 8407.90.90

Port Director
U.S. Customs Service
610 S. Canal Street
Chicago, Illinois 60607

RE: Protest 3901-95-101628; Gasoline Engines; Parts and Accessories of Gasoline Powered Toys; Headings 8407 and 9503; Legal Note 3 to Chapter 95

Dear Port Director:

The following is our decision regarding Protest 3901-95-101628, which concerns the classification of gasoline engines under the Harmonized Tariff Schedule of the United States (HTSUS). In preparing this ruling, consideration was given to supplemental submissions made by counsel for the protestant on May 31, July 8, and September 19, 1996.

FACTS:

The subject merchandise consists of two gasoline engines, models G2D and G380PU. The G2D engine has a 22.5 cylinder capacity (cc), a maximum torque of 6500 rpm, and weighs 2.5 kg. The G380PU engine has 37.4 cc, a maximum torque of 6000 rpm, and weighs 4.5 kg.

In their condition as imported, the subject engines are capable of use in several applications such as weed whackers, hedge trimmers, blowers, chain saws, power sprayers, engine drills, water pumps, earth augers, etc. If the G2D or the G380PU are used as an engine for model airplanes, the muffler and engine mounting plate must be removed and replaced with the following components: a cup mount; a special muffler; a spring starter; and a throttle linkage.

The merchandise was entered in 1993 under subheading 8407.31.00, or 8407.32.90, HTSUS, as gasoline engines, depending on cylinder capacity. The entry was liquidated on April 14, 1995, under subheading 9503.80.80, HTSUS, as parts of toy models incorporating a motor. The protest was timely filed on July 12, 1995.

Classification of the merchandise under subheading 8407.90.90, HTSUS, as other engines is also under consideration.

The 1993 subheadings and rates of duty under consideration are as follows:

8407: Spark-ignition reciprocating or rotary internal combustion piston engines:

8407.31.00: [r]eciprocating piston engines of a kind used for the propulsion of vehicles of chapter 87: [o]f a cylinder capacity not exceeding 55 cc . . . . (Duty rate: free)

8407.32.90: [r]eciprocating piston engines of a kind used for the propulsion of vehicles of chapter 87: [o]f a cylinder capacity exceeding 55 cc but not exceeding 250 cc: [o]ther . . . . (Duty rate: free)

8407.90.90: [o]ther engines: [o]ther. . . . (Duty rate: free)

9503.80.80 Other toys; reduced-size ("scale") models and similar recreational models, working or not; puzzles of all kinds; and accessories thereof: [o]ther toys and models, incorporating a motor, and parts and accessories thereof: [p]arts and accessories . . . . (Duty rate: 6.8% ad valorem)

ISSUE:

Whether the gasoline engines, as imported, are classifiable as principally used as parts and accessories of gasoline-powered toys under heading 9503, or as spark-ignition reciprocating or rotary internal combustion piston engines under heading 8407?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI's). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes.

Section XVI, which includes heading 8407, provides in Legal Note 1(p) that this section does not cover articles of chapter 95. Thus, if the engines are classifiable in chapter 95, then they are excluded from classification in heading 8407, HTSUS. Chapter 95, HTSUS, which provides for parts of model toys contains special language in Legal Note 3. Legal Note 3 to Chapter 95, HTSUS, states that: "Subject to note 1 above, parts and accessories which are suitable for use solely or principally with articles of this chapter are to be classified with those articles". Heading 9503, HTSUS, provides for reduced-size ("scale") models and similar recreational models, including their parts and accessories.

The Harmonized Commodity Description and Coding System Explanatory Notes (EN) constitute the official interpretation of the HTSUS. While not legally binding or dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 FR 35127, 35128 (August 23, 1989). EN 95.03 states in pertinent part at page 1588:

This heading also covers identifiable parts and accessories of the articles of this heading, which are suitable for use solely or principally therewith and provided they are not articles excluded by Note 1 to this Chapter. Such parts and accessories include:

(2) Miniature internal combustion piston engines and other engines (other than electric motors of heading 85.01) for example, for model aircraft, ships, which are characterized, inter alia, by small cylinder capacity and power rating, low weight and small size.

The subject gasoline engines may be considered to have a small cylinder capacity, power rating, low weight and small size. However, to be classified under heading 9503, the gasoline engines must also meet the terms of being solely or principally used as a part for model toys. In their condition as imported, the subject merchandise does not have the components necessary to dedicate them to be principally or solely used in model airplanes. To use the G2D or the G380PU gasoline engine for model airplanes, the muffler and engine mounting plate must be removed and replaced with the following components: a cup mount; a special muffler; a spring starter; and a throttle linkage. Furthermore, the protestant has provided documents demonstrating that the model G2D and the G380PU gasoline engines have numerous uses in: weed whackers, hedge trimmers, blowers, engine drills, chain saws, power sprayers, water pumps, earth augers, etc. The fact that the protestant may be associated with toys and models is not sufficient to determine that these particular gasoline engine models are solely or principally used as parts of model toys. Because we find that the subject gasoline engines do not meet the requirements of Legal Note 3 to Chapter 95, HTSUS, the subject merchandise cannot be classified under heading 9503, HTSUS.

The gasoline engines meet the terms of heading 8407, HTSUS, which provides for "[s]park-ignition reciprocating or rotary internal combustion piston engines". However, the evidence does not support the claim that the engines are of the kind used for the propulsion of vehicles of chapter 87. Therefore, the subject merchandise cannot be classified under the claimed provisions subheading 8407.31.00 or 8407.32.90, HTSUS. Based upon all the information in the file, we believe that the model G2D and the G380PU gasoline engines are properly classifiable under subheading 8407.90.90, HTSUS, which provides for other engines.

HOLDING:

The gasoline engines, models G2D and G380PU, are classifiable under subheading 8407.90.90, HTSUS, which provides for: "[s]park-ignition reciprocating or rotary internal combustion piston engines: [o]ther engines: [o]ther. . . . " Goods classifiable under this provision have a general, column one rate of duty of free.

Because reclassification of the merchandise as indicated above will result in the same rate of duty as claimed, you should GRANT the protest in full. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision, together with the Customs Form 19, should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Tariff Classification Appeals

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