HQ 0950698 - Request for Reconsideration of New York Ruling Letter (NYRL) 865973; "Amazing Flying Witch" in heading 9502, HTSUSA; Dolls representing only human beings - United States International Trade Commision Rulings

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HQ 950698

March 20, 1992

CLA-2 CO:R:C:F 950698 LPF

CATEGORY: CLASSIFICATION

TARIFF NO.: 9502.10.4000

Mr. David R. Meade
Distribution Manager
Great American Fun Corp.
3656 Paragon Drive
Columbus, OH 43228

RE: Request for Reconsideration of New York Ruling Letter (NYRL) 865973; "Amazing Flying Witch" in heading 9502, HTSUSA; Dolls representing only human beings

Dear Mr. Meade:

This is in response to your letter of November 11, 1991 submitted on behalf of Great American Fun Corp. of Columbus, Ohio requesting reconsideration of NYRL 865973, issued August 29, 1991. In NYRL 865973, an article known as the "Amazing Flying Witch" was classified in subheading 9502.10.4000, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), as "[d]olls representing only human beings and parts and accessories thereof: Dolls, whether or not dressed: Other: Not over 33 cm in height." The general column one rate of duty was 12 percent ad valorem.

You contend that the article is classifiable in subheading 9503.49.2000, HTSUSA, as "[o]ther toys; reduced- size ("scale") models and similar recreational models, working or not;...parts 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 general column one rate of duty would be 6.8 percent ad valorem. However, any duty on the article would be temporarily suspended under subheading 9902.95.02, HTSUSA. We have reconsidered NYRL 865973. The article is classifiable as follows.

FACTS:

The "Amazing Flying Witch," item number FW01, is a plastic figure about eight inches tall. The head, hands and legs are made of soft vinyl while the torso is made of hard plastic. The witch is riding a broom which has a small plastic propeller extending from the bristle portion. The witch wears a black dress and a black hat and cape. The flesh colored witch possesses a generally humanoid configuration including a head with simulated hair and a torso with arms and legs. The sample departs from a fully accurate representation of a human being in that the nose is quite big and the chin quite prominent and protruding. A plastic square with screws is packed with the witch. A hook with a line is attached to the plastic square which is then securely attached to the ceiling. When the battery operated motor is activated, the propeller turns, causing the witch to fly in a circular motion.

ISSUE:

Whether the "Amazing Flying Witch" is classifiable in heading 9502 as dolls representing only human beings or in heading 9503 as other toys.

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI's) taken in their appropriate order provide a framework for classification of merchandise under the HTSUSA. The majority of imported 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 GRI's may then be applied. 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 the HTSUSA by offering guidance in understanding the scope of the headings and GRI's.

The subject article is classifiable by applying GRI 1, that is, according to the terms of the applicable heading. Heading 9502 provides for dolls representing human beings. The EN's to 9502 state 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 use in Punch and Judy or marionette shows, or those of a caricature type. [Dolls] may be jointed and contain mechanisms which permit limb, head or eye movements as well as reproductions of the human voice, etc...."

Heading 9503 provides for other toys and reduced-size ("scale") models. The EN's to 9503 state that, inter alia, the heading covers:

(A) All toys not included in headings 95.01 and 95.02. Many of the toys of this heading are mechanically or electrically operated.

These include:

(1) Toys representing animals or non-human creatures even if possessing predominantly human physical characteristics (e.g., angels, robots, devils, monsters), including those for use in marionette shows.

In the past, Customs has issued several decisions which address the relationship between headings 9502 and 9503 in light of the above Explanatory Notes. When determining which heading was applicable to a specific article, Customs 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.

The witch does not meet the criteria for a non-human creature because of the following reasons. First, a witch is not widely recognized or established in popular culture as a non- human creature, but rather is "one credited with usu. malignant supernatural powers; esp : a woman practicing usu. black witchcraft...." See Webster's Ninth New Collegiate Dictionary 1354 (1990).

Second, the witch does not possess non-human features, that is, body parts that do not exist on human beings (e.g., halos, wings, horns, tails, etc.). Although its nose and chin are bigger and longer than seen on humans, these features are merely embellishments or alterations of human physical attributes. This does not mean the article possesses non-human features or body parts which make the article non-human. In addition, although the article has the unique, non-human, capability of flying, and may be depicted or marketed as such, this is not indicative as to whether it is human or non-human.

For these reasons, the witch is classifiable in heading 9502. The applicable subheading is 9502.10.4000.

HOLDING:

The "Amazing Flying Witch" is classifiable in subheading 9502.10.4000, HTSUSA, as "[d]olls representing only human beings and parts and accessories thereof: Dolls, whether or not dressed: Other: Not over 33 cm in height." The general column one rate of duty is 12 percent ad valorem. NYRL 865973 is correct and, thus, affirmed in full.

Sincerely,

John Durant, Director
Commercial Rulings Division

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