CLA-2 CO:R:C:F 952807K
TARIFF No.: 9502.10.4000
District Director of Customs
U.S. Customs Service
610 South Canal St.
Chicago, Illinois 60607
RE: Application For Further Review of Protest No. 3910-92-101035;
Metal Figures of Sir Topham Hatt & The Engineer (Porter)
Dear Sir:
The following is in response to the referral dated October
22, 1992, from the Assistant District Director, Commercial
Operations, of the request for further review of the above-
referenced protest. Samples and literature were submitted.
FACTS:
The consumption entry covering the imported merchandise was
liquidated on May 8, 1992, under the provision for other toys,
(except models), not having a spring mechanism, subheading
9503.90.6000, Harmonized Tariff Schedule of the United States
(HTSUS), with duty at 6.8 percent ad valorem. A timely
classification protest under 19 U.S.C. 1514 was received on July
28, 1992. The protestant requests reliquidation of the entry
under the provision for other statuettes and other ornaments of
base metal, subheading 8306.29.0000, HTSUS, with duty at 5
percent ad valorem. Your office suggests an alternative
classification under the provision for dolls representing only
human beings, not stuffed, and not over 33 cm in height,
subheading 9502.10.4000, HTSUS, with duty at 12 percent ad
valorem.
The merchandise consists of two small metal figures
described in a catalog as a "NEW TWO PIECE DIE-CAST FIGURE SET"
which includes "Sir Topham Hatt and Porter." Sir Topham Hatt is
approximately 2-1/4 inches in height and the railroad Porter is
approximately 2-1/2 inches in height. Each figure is molded to a
1 inch circular stand approximately 1/8 inch in thickness which
permits each figure to stand by itself. There are no moveable
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parts. The figures are not designed to be attached to another
item or to fit into another item such as a toy railroad car. The
figures, as stated, are designed to stand alone.
ISSUE:
The issue is whether the figures are classifiable as dolls,
as other toys, or as statuettes and other ornaments of base
metal.
LAW AND ANALYSIS:
The protestant cites New York Ruling Letter (NYRL) 874900,
dated June 22, 1992, to support the position that the figures
covered by the protest are classifiable under the provision for
other statuettes and other ornaments of base metal, subheading
8306.29.0000, HTSUS, with duty at 5 percent ad valorem.
In NYRL 874900, the merchandise is described as zinc figures
of popular comic book characters. The figures are about 2-1/2
inches tall and 1 inch wide. They represent the Batman, the
Penguin, the Catwoman, and a Penguin Commando. They are claimed
to be designed for collectors. In addition to the description in
the ruling letter, we were provided with samples of the Batman
and the Penguin Commando for our comparison with the figures
covered by the protest. The Batman and the Penguin Commando,
like the figures under protest, contain permanently molded
irregular circular stands approximately 1/8 inch in thickness
which permits each figure to stand by itself. There are no
moveable parts. The figures are not designed to be attached to
another item or to fit into another item such as a vehicle. NYRL
874900 no longer reflects the views of the Customs Service and
appropriate action will be taken to change the position taken in
that ruling.
Notwithstanding the liquidation of the entry under the
provision for other toys, (except models), not having a spring
mechanism, subheading 9503.90.6000, HTSUS, with duty at 6.8
percent ad valorem, your office is of the opinion that the
correct classification of the figures is under the provision for
dolls representing only human beings, not stuffed, and not over
33 cm in height, subheading 9502.10.4000, HTSUS, with duty at 12
percent ad valorem. We agree.
The General Rules of Interpretation (GRI's) taken in their
appropriate order provide a framework for classification under
the Harmonized Tariff Schedule of the United States (HTSUS).
Most imported goods are classified by application of GRI 1, that
is, according to the terms of the headings of the 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
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remaining GRI's may be applied, taken in order. 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 HTSUS
by offering guidance in understanding the scope of the headings
and GRI's.
Subheading 9502.10.4000 provides for dolls, whether or not
dressed, not over 33 cm in height, not stuffed and representing
only human beings. The EN for heading 9502 states 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 the use in Punch and Judy or
marionette shows, or those of a caricature type." Further, the
General notes to Chapter 95, of the EN states that Chapter 95
"covers toys of all kinds whether designed for the amusement of
children or adults."
The chapter notes of the HTSUS and the EN do not preclude
the classification of Sir Topham Hatt and the Engineer (Porter)
under the provision for dolls, subheading 9502.10.4000, HTSUS.
Accordingly, we need not resort to the other GRI's to determine
the classification of the figures in question. There is a series
of rulings to support the classification of the figures as dolls.
In NYRL 841282, dated May 25, 1989, figures 3 inches tall
composed of PVC vinyl with clearly distinguished human features
and molded on wearing apparel reflecting positions with the
railroad were classified as dolls under subheading 9502.10.4000,
HTSUS. In NYRL 535580, dated January 25, 1989, plastic molded
figures 1-3/4 inches, if imported separately from a toy set, were
held to be dolls. In NYRL 847931, dated January 8, 1990, 2-1/2
inch polyvinyl chloride "Peanuts" cartoon figures, "Charlie
Brown" and "Lucy" with accessories such as a plastic tiller and
wheelbarrow designed to be attached to the hands of the figures
were classified on the basis of essential character (GRI 3(b)) as
dolls and affirmed by Headquarters Ruling Letter (HRL) 086633,
dated September 18, 1990, and reaffirmed by HRL 088895, dated
March 22, 1993. In NYRL 855744, dated September 17, 1990, 3 inch
and 4-1/2 inch plastic figures of comic book characters
"Colossus", "Hulk", and "Wolverine" were classified as dolls. In
NYRL 855794, dated September 24, 1990, 4 inch and 3-1/2 inch
plastic figures of comic book characters "Daredevil" and "Scarlet
Witch" were classified as dolls. In NYRL 833463, dated December
15, 1988, a 3 inch polyvinyl chloride figure of "Ronald McDonald"
attached to a 2 inch star designed to glow in the dark was
classified as a doll. In HRL 082001, dated February 13, 1990, 3-
1/2 to 5 inch plastic molded figures of sports personalities
attached to plastic bases were classified as dolls under
subheading 9502.10.40, rather than as other toys under subheading
9503.49.0020, or as statuettes of plastics under subheading
3926.40.0000.
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HOLDING:
The figures of base metal, Sir Topham Hatt and the Engineer
(Porter) are classifiable as dolls representing only human
beings, not stuffed, and not over 33 cm in height, in subheading
9502.10.4000, HTSUS, dutiable at the general rate of 12 percent
ad valorem.
Since the rate of duty of 12 percent ad valorem under the
classification holding above is more than the liquidated rate of
duty of 6.8 percent ad valorem which was protested, you are
instructed to deny the protest in full, except to the extent that
the protestant shall be allowed the benefit of the rate of duty
at 6.8 percent ad valorem.
In accordance with Section 3A(11)(b) of Customs Revised
Protest Directive 099 3550-065, dated August 4, 1993, a copy of
this decision attached to the Customs Form 19, Notice of Action,
should be provided by your office to the protestant no later than
60 days from the date of this decision and any reliquidations of
entries (apparently not applicable in this protest) in accordance
with this decision must be accomplished prior thereto. Sixty
days from the date of this decision the Office of Regulations and
Rulings will take steps to make this decision available to
Customs personnel via the Customs Rulings Module in ACS and the
public via the Diskette Subscription Service, Lexis, Freedom of
Information Act and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division