CLA-2:CO:R:C:G 084301 SR
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.
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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
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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
Commercial Rulings Division