CLA-2 RR:TC:FC 958242 RC
Port Director of Customs
1000 Second Avenue, Suite 2200
Seattle, Washington 98104-1049
RE: Decision on Application for Further Review of Protest No.
3001-95-100368, filed
May 23, 1995, concerning the classification of various toy
creatures and action figures
Dear Sir:
This is a decision on a protest timely filed May 23, 1995,
against your decision in the classification under the Harmonized
Tariff Schedule of the United States Annotated (HTSUSA) of
articles entered from July through December 1994 consisting of
action figures and toy creatures.
FACTS:
The protestant claims that some figures possess readily
apparent non-human features (e.g., fangs, claws, abnormally
shaped skulls, etc.), and that these figures should be 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," dutiable at 6.8 percent ad valorem.
You classified each figure in subheading 9502.10.4000 (now
9502.10.0020), HTSUSA, 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," dutiable at 12
percent ad valorem. You also identified each figure by name
under the item no. in which the article is included, as indicated
below:
Item 52100
Ziv Zulander
Twig
Bats
Ninjzz
Dr. Hisss
Greenbot
Humabot
P.P.B. (Private
Police Bot)
All are two-legged figures capable of standing erect. All
figures have movable heads and appendages, both upper and lower
(e.g., arms, legs, and/or weapons, etc.). Two figures appear
muscular. Many figures are packaged with small toy accessories
such as weapons or tools.
ISSUE:
Whether the figures fall into heading 9502, HTSUS, as dolls
representing only human beings, or in heading 9503, HTSUS, as
other toys representing animals or non-human creatures.
LAW AND ANALYSIS:
Classification under the HTSUSA 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 HTSUSA 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
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 ENs to heading 9503, HTSUS, indicate 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 numerous decisions interpreting and
applying the ENs 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" 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.
In Headquarters Ruling Letter (HRL) 085855, issued August 9,
1990, this office affirmed the doll classification of a
"Beetlejuice" figure, which represented the ghost character from
a popular movie and television show. The doll featured
characteristics claimed to be non-human, but which could only be
discovered by close examination. We stated that "[i]n order not
to be classified as dolls, figures representing...other
creatures, must possess appendages and features which
immediately, at first glance, identify them as non-human."
Looking to the figures that have been classified as dolls in
this case, we note that in some instances, the patent distortions
essentially consist of such features as intricate headgear,
weaponry that is uniquely attached to, but is not an integral
part of, the body, various prosthetics, etc. As noted above,
when a figure's non-human features can only be discovered by
close examination, the doll classification may be appropriate.
With a few exceptions listed below, we find that the figures
classified in heading 9502, HTSUS, do not manifest non-human
characteristics immediately apparent to a casual observer,
particularly in light of each figure's otherwise overwhelmingly
human appearance. The figures identified as Ziv Zulander, a
young man with armor and weapons, and Dr. Hisss, an unfortunate
person with a prosthetic leg and an externally attached
prosthetic heart, both depict humans. Therefore, they are
classified in subheading 9502.10.4000, HTSUSA, 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 rate of duty is 12 percent ad valorem
(1994).
With respect to the exceptions referenced above, we find the
features of the figures identified as "Twig," "Bats," "Ninjzz,"
"Greenbot," "Humabot," and "P.P.B." previously classified as
dolls, now provide a basis upon which to classify these items in
heading 9503, HTSUS, as toys representing animals or non-human
creatures.
At first glance, these figures appear to be robots. Close
examination is not required to discover that the figures have no
human features such as a mouth, a nose, ears, hair, skin, etc.
Although these figures were classified in subheading
9502.10.4000, HTSUSA, we find the casual observer would
immediately see that the articles do not appear to represent
humans, but rather mechanical creatures. As robots, the figures
fall into heading 9503, HTSUS, and this position is supported by
the ENs.
HOLDING:
The figures identified as Ziv Zulander and Dr. Hisss are
classified in subheading 9502.10.4000, HTSUSA, 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 rate of duty is 12 percent ad valorem
(1994).
The figures identified as Twig, Bats, Ninjzz, Greenbot,
Humabot, and P.P.B. (Private Police Bot) are 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 rate of duty is 6.8 percent ad valorem
(1994).
Except to the extent that reclassification of the
merchandise as indicated above results in net duty reductions and
partial allowances, you are instructed to deny the protest. A
copy of this decision should be attached to the Form 19 to be
returned to the protestant.
In accordance with Section 3A(11)(b) of Customs Directive
099 3550-065, dated August 4, 1993, Subject: Revised Protest
Directive, this decision should be mailed by your office to the
protestant no later than 60 days from the date of this letter.
Any reliquidation of the entries 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 to the
public via the Diskette Subscription Service, the Freedom of
Information Act, and other public access channels.
Sincerely,
John Durant, Director
Tariff Classification
Appeals Division