CLA-2 CO:R:C:F 950698 LPF
Mr. David R. Meade
Distribution Manager
Great American Fun Corp.
3656 Paragon Drive
Columbus, OH 43228
RE: Request for Reconsideration of New York Ruling Letter (NYRL)
865973; "Amazing Flying Witch" in heading 9502, HTSUSA;
Dolls representing only human beings
Dear Mr. Meade:
This is in response to your letter of November 11, 1991
submitted on behalf of Great American Fun Corp. of Columbus,
Ohio requesting reconsideration of NYRL 865973, issued August 29,
1991. In NYRL 865973, an article known as the "Amazing Flying
Witch" was classified in subheading 9502.10.4000, Harmonized
Tariff Schedule of the United States Annotated (HTSUSA), as
"[d]olls representing only human beings and parts and accessories
thereof: Dolls, whether or not dressed: Other: Not over 33 cm in
height." The general column one rate of duty was 12 percent ad
valorem.
You contend that the article is classifiable in subheading
9503.49.2000, HTSUSA, as "[o]ther toys; reduced- size ("scale")
models and similar recreational models, working or not;...parts
and accessories thereof: Toys representing animals or non-human
creatures (for example, robots and monsters) and parts and
accessories thereof: Other, Toys not having a spring mechanism:
Other." The general column one rate of duty would be 6.8 percent
ad valorem. However, any duty on the article would be
temporarily suspended under subheading 9902.95.02, HTSUSA. We
have reconsidered NYRL 865973. The article is classifiable as
follows.
-2-
FACTS:
The "Amazing Flying Witch," item number FW01, is a plastic
figure about eight inches tall. The head, hands and legs are
made of soft vinyl while the torso is made of hard plastic. The
witch is riding a broom which has a small plastic propeller
extending from the bristle portion. The witch wears a black
dress and a black hat and cape. The flesh colored witch
possesses a generally humanoid configuration including a head
with simulated hair and a torso with arms and legs. The sample
departs from a fully accurate representation of a human being in
that the nose is quite big and the chin quite prominent and
protruding. A plastic square with screws is packed with the
witch. A hook with a line is attached to the plastic square
which is then securely attached to the ceiling. When the battery
operated motor is activated, the propeller turns, causing the
witch to fly in a circular motion.
ISSUE:
Whether the "Amazing Flying Witch" is classifiable in
heading 9502 as dolls representing only human beings or in
heading 9503 as other toys.
LAW AND ANALYSIS:
The General Rules of Interpretation (GRI's) taken in their
appropriate order provide a framework for classification of
merchandise under the HTSUSA. The majority of imported goods are
classified by application of GRI 1, that is, according to the
terms of the headings of the tariff schedule and any relative
section or chapter notes. In the event that the goods cannot be
classified solely on the basis of GRI 1, and if the headings and
legal notes do not otherwise require, the remaining GRI's may
then be applied. The Explanatory Notes (EN's) to the Harmonized
Commodity Description and Coding System, which represent the
official interpretation of the tariff at the international level,
facilitate classification under the HTSUSA by offering guidance
in understanding the scope of the headings and GRI's.
The subject article is classifiable by applying GRI 1, that
is, according to the terms of the applicable heading. Heading
9502 provides for dolls representing human beings. The EN's to
9502 state that "the heading includes not only dolls designed for
the amusement of children, but also dolls intended for decorative
purposes (e.g., boudoir dolls, mascot dolls), or for use in Punch
and Judy or marionette shows, or those of a caricature type.
[Dolls] may be jointed and contain mechanisms which permit limb,
head or eye movements as well as reproductions of the human
voice, etc...."
-3-
Heading 9503 provides for other toys and reduced-size
("scale") models. The EN's to 9503 state that, inter alia, the
heading covers:
(A) All toys not included in headings 95.01 and 95.02.
Many of the toys of this heading are mechanically
or electrically operated.
These include:
(1) Toys representing animals or non-human
creatures even if possessing predominantly
human physical characteristics (e.g., angels,
robots, devils, monsters), including those
for use in marionette shows.
In the past, Customs has issued several decisions which
address the relationship between headings 9502 and 9503 in light
of the above Explanatory Notes. When determining which heading
was applicable to a specific article, Customs stated the
following:
At their joint meeting on May 4, 1985, the Nomenclature
Committee and the Interim Harmonized System Committee
decided that angels and devils could not be regarded as
dolls within the meaning of heading 9502. This
decision was based on the argument that this heading
restricts its contents to dolls representing only human
beings. The majority of the participants adopted the
viewpoint that angels and devils should be regarded
as toys under heading 9503.
The witch does not meet the criteria for a non-human
creature because of the following reasons. First, a witch is
not widely recognized or established in popular culture as a non-
human creature, but rather is "one credited with usu. malignant
supernatural powers; esp : a woman practicing usu. black
witchcraft...." See Webster's Ninth New Collegiate Dictionary
1354 (1990).
Second, the witch does not possess non-human features, that
is, body parts that do not exist on human beings (e.g., halos,
wings, horns, tails, etc.). Although its nose and chin are
bigger and longer than seen on humans, these features are merely
embellishments or alterations of human physical attributes. This
does not mean the article possesses non-human features or body
parts which make the article non-human. In addition, although
the article has the unique, non-human, capability of flying, and
may be depicted or marketed as such, this is not indicative as to
whether it is human or non-human.
-4-
For these reasons, the witch is classifiable in heading
9502. The applicable subheading is 9502.10.4000.
HOLDING:
The "Amazing Flying Witch" is classifiable in subheading
9502.10.4000, HTSUSA, as "[d]olls representing only human beings
and parts and accessories thereof: Dolls, whether or not dressed:
Other: Not over 33 cm in height." The general column one rate of
duty is 12 percent ad valorem. NYRL 865973 is correct and, thus,
affirmed in full.
Sincerely,
John Durant, Director
Commercial Rulings Division