CLA-2 RR:TC:MM 958895 RFA
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
Division