CLA-2 CO:R:C:F 955876 GGD
District Director of Customs
1000 Second Avenue, Suite 2200
Seattle, Washington 98104-1049
RE: Internal Advice Request No. 3/94; "Stone Protectors" Action
Figures; Dolls (Protectors/Heroes) and Toy Non-Human
Creatures (Predators/Villains)
Dear Sir:
This letter is in response to Internal Advice Request No.
3/94, initiated by a letter dated October 8, 1993, submitted by
Sharretts, Paley, Carter & Blauvelt, P.C., 67 Broad Street, New
York, New York 10004, on behalf of Ace Novelty Co., Inc. The
request concerns the classification of various action figures under
the Harmonized Tariff Schedule of the United States (HTSUS).
Samples were submitted with the request.
FACTS:
The "Stone Protectors" are individually packaged and presented
in one of two separate styles. The first style, identified by item
no. 76001, includes the original, battle-oriented figures,
consisting of five protectors (Chester, Angus, Clifford, Cornelius,
and Maxwell) and two predators (Zok and Zink). In the second
style, identified by item no. 76002, Chester, Angus, Clifford,
Cornelius, and Maxwell are presented as sports heroes, while two
different figures named Suckerpuncher and Tackle Jackal are
presented as sports villains.
All the figures measure approximately five inches in height,
and are capable of standing erect. They have movable heads, legs,
and arms, and all the hands have three fingers and a thumb.
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The protectors/heroes (five figures of each style) are flesh-
colored, very muscular, and (except for pointed ears) have human-
like facial features (noses, eyes, and mouths, most with white
teeth or a pink tongue visible). Each of the figures wears sturdy
footwear. With respect to head shape, the top of the head is
rounded in both versions (protector and hero) of Chester, who has
red, Mohawk-styled hair. In each version of the other four
characters, the hair (which is either light green, blue, or yellow)
sticks straight up from the top of a head that is somewhat
truncated. With the exception of only the protector version of
Angus, however, the head distortion of the protectors/heros is
mostly concealed by goggles, headbands, hair bands, or helmets,
some of which are removable.
The reptilian-textured skin of the predators/villains (two
figures of each style) is colored either yellow, rust, green, or
blue. The truncated heads and faces are lizard-like, with jagged
teeth or plates, red or lime-green eyes (Suckerpuncher has only one
visible eye), and hair which is either green, purple, or yellow.
Claws or spikes protrude from the footwear of the sports villains,
while each of the predator figures has webbed feet with claws.
ISSUE:
Whether the figures are properly classified in heading 9503,
HTSUS, as other toys representing non-human creatures, or in
heading 9502, as dolls representing only human beings.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the
General Rules of Interpretation (GRIs). The systematic detail of
the harmonized system is such that virtually all 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 GRIs may then be applied.
The Explanatory Notes (ENs) to the Harmonized Commodity Description
and Coding System, which represent the official interpretation of
the tariff at the international level, facilitate classification
under the HTSUS by offering guidance in understanding the scope of
the headings and GRIs.
Heading 9502, HTSUS, provides for "Dolls representing only
human beings and parts and accessories thereof." The ENs to
heading 9502 indicate that the heading includes not only dolls
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designed for the amusement of children, but also dolls intended for
decorative purposes, or those of a caricature type.
Heading 9503, HTSUS, applies to "other toys," i.e., all toys
not specifically provided for in the other headings of Chapter
95. The EN to heading 9503, HTSUS, indicates that the heading
includes toys representing animals or non-human creatures, even if
possessing predominantly human physical characteristics (e.g.,
angels, robots, devils, monsters).
Customs has issued several decisions interpreting and applying
the EN above, and discussing the relationship of competing headings
9502 and 9503, HTSUS. In Headquarters Ruling Letter (HRL) 086088,
dated February 21, 1990, we 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.
It is Customs position that the intent of the committees
in reaching this conclusion is to deny the doll classification
to those figures which possess non-human characteristics that
are immediately apparent to the casual observer. Where the
non-human feature(s) can only be discovered by close
examination, the doll classification may be appropriate. The
phrase "close examination" may encompass the need to look
closely, the need to remove the clothes of the figure, or
perhaps even the need of the observer to guess as to whether
a feature that appears to be non-human is, in actuality, such
a feature. Most angels and devils possess readily apparent
non-human features, i.e., halos, large wings, visible horns,
pointed tails, etc. However, if a figure is marketed as an
angel or devil, and yet appears human to the casual observer,
then, again, the doll classification may be appropriate.
In HRLs 081201 and 089895, issued October 3, 1988 and November
4, 1991, respectively, we classified certain troll figures that
were described, in pertinent part, as being pot-bellied, flesh-
colored, erect-standing figures, having flat heads with virtually
no foreheads, pointed ears, and large, upturned snouts. We noted
the guidance provided by the ENs, that dolls should "represent"
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human beings, and cited Webster's Third New International
Dictionary (1961), which defines "represent" as meaning "to portray
by pictorial, plastic, or musical art: delineate, depict...to serve
as the counterpart or image of: typify." In each case, we held
that, while certain troll figures may have "resembled" human beings
to some extent, it was immediately apparent to the casual observer
that the subject figures did not "represent" humans, but rather
represented widely recognized non-human creatures, i.e., trolls.
Looking to the action figures of this case, we note that the
only patent distortion of the protectors/heroes consists of pointed
ears. The truncated heads of all four hero figures and of three of
the four protector figures are able to be concealed by head wear
that is either packaged with, or molded onto, each figure. As
noted above, when a figure's non-human features can only be
discovered by close examination (possibly requiring the removal of
clothing), the doll classification may be appropriate. Even
lacking concealing head wear, we find it unlikely that the crown of
protector figure Angus's head is a non-human characteristic that
would be immediately apparent to a casual observer, particularly in
light of the figure's otherwise overwhelmingly human appearance.
It is thus our determination that all of the protector/hero figures
represent human beings and are properly classified in subheading
9502.10.4000, HTSUS, as dolls.
On the other hand, it is immediately apparent to the casual
observer that the distorted characteristics of the predator/villain
figures are not representative of human beings, but of non-human
creatures. It is our determination that the figures identified as
Zok, Zink, Suckerpuncher, and Tackle Jackal are classified in
subheading 9503.49.0020, HTSUS, as other toys representing non-
human creatures.
HOLDING
The "Stone Protectors" action figures named "Chester, Angus,
Clifford, Cornelius, and Maxwell," and further identified as
protectors and/or sports heroes (item nos. 76001 and 76002,
respectively), are properly classified in subheading 9502.10.4000,
HTSUS, the provision for "Dolls representing only human beings and
parts and accessories thereof: Dolls, whether or not dressed:
Other: Not over 33 cm in height." The applicable duty rate is 12
percent ad valorem.
The "Stone Protectors" action figures named "Zok and Zink,"
that are further identified as predators (item no. 76001), and
those named "Suckerpuncher and Tackle Jackal," that are further
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identified as sports villains (item no. 76002), are properly
classified in subheading 9503.49.0020, HTSUSA, the provision for
"Other toys...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 applicable duty rate is 6.8 percent ad valorem.
This decision should be mailed by your office to the internal
advice requester no later than 60 days from the date of this
letter. After sixty days, 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 to the public via the
Diskette Subscription Service, Freedom of Information Act, and
other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division