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

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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