HQ 084301: Decision on Application for Further Review of Protest No. 2904-8-000194.

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                                      HQ 084301

                                  September 4, 1990



          CLA-2:CO:R:C:G  084301  SR

          CATEGORY:  Classification

          TARIFF NO.:  737.93

          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.  


















                                         -2-

          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



















                                         -3-

          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