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