Application For Further Review of Protest No. 3910-92-101035; Metal Figures of Sir Topham Hatt & The Engineer (Porter)

HQ 952807 March 30, 1994 CLA-2 CO:R:C:F 952807K CATEGORY: Classification 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 -2- 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 -3- 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. -4- 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