HQ 957075 - Reconsideration of Pre-Entry Classification Determination (PC) 874017 as it Pertains to a "Dress-Me-Up Pal," Elmo and Ernie Doll Assortment; PC is Correct as to Sample and Article Described by Importer - United States International Trade Commision Rulings

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HQ 957075

January 17, 1995

CLA-2 CO:R:C:F 957075 GGD

CATEGORY: CLASSIFICATION

TARIFF NO.: 9503.41.0010; 9502.10.0010

Ms. Trish Bender
Wholesale Supply Company, Inc.
Post Office Box 24600
Nashville, Tennessee 37202

RE: Reconsideration of Pre-Entry Classification Determination (PC) 874017 as it Pertains to a "Dress-Me-Up Pal," Elmo and Ernie Doll Assortment; PC is Correct as to Sample and Article Described by Importer

Dear Ms. Bender:

This letter is in response to your request of August 29, 1994, for reconsideration of PC 874017, issued May 29, 1992, as it pertains to the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of certain stuffed figures imported from China. A sample of an "Ernie" doll was submitted at the time of the original determination. A separate sample of an "Ernie" doll, and copies of various catalog pages showing both "Ernie" and "Elmo" figures, were submitted with your current request.

FACTS:

In PC 874017, dated May 29, 1992, item no. 460TPA, a "Dress- Me-Up Ernie" doll, was one of numerous products classified prior to entry, based upon a sample and the importer's description of the item. The doll was classified in subheading 9502.10.2000 (now 9502.10.0010), HTSUSA, the provision for "Dolls representing only human beings and parts and accessories thereof: Dolls, whether or not dressed: Stuffed," with a duty rate of 12 percent ad valorem. Under the tariff effective January 1, 1995, the rate has been reduced to free.

In, and subsequent to, your request for reconsideration, you apprised Customs that current importations of the item classified in PC 874017, are identified by item no. 365TPA. The article is -2-
said to be described by the vendor as "Dress-Me-Up Pal," and by the buyer as "Dress-Me-Up Ernie/Elmo." You also advised that the article has always been an "assortment," meaning there are two versions of the retail package - one containing an "Ernie" doll, and the other, an "Elmo" figure. The ultimate consumer may choose to purchase either or both, but there is only one figure per package.

Upon review of the record, the catalog depictions of the two figures, and the current "Dress-Me-Up Pal" sample, we find that PC 874017 is correct based upon the pre-entry sample and description of the goods. However, this letter additionally provides a binding ruling as to the tariff classification of the "Elmo" version of the assortment actually imported.

The "Elmo" version of the "Dress-Me-Up Pal" assortment (item no. 365TPA) consists of a stuffed figure measuring approximately 12 inches in height. Although the figure is dressed, its "skin" consists of reddish fur. The head features no ears and no hair (other than the fur). Large, bulbous eyes, without associated lids, lashes, or brows, rest on top of the head.

ISSUE:

What is the classification of the "Elmo" version of the "Dress-Me-Up Pal" assortment?

LAW AND ANALYSIS:

Classification under the HTSUS 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 HTSUS by offering guidance in understanding the scope of the headings and GRIs.

Among other items, chapter 95, HTSUS, covers toys. Although the term "toy" is not specifically defined in the tariff, the ENs to chapter 95 indicate that the chapter covers toys of all kinds whether designed for the amusement of children or adults. It has been Customs position that toys should be designed and used principally for amusement. It is apparent that the primary function of the stuffed "Elmo" figure, like the stuffed "Ernie" -3-
doll, is to provide amusement to children. Unlike the "Ernie" doll, however, the "Elmo" figure does not represent a human being.

Heading 9503, HTSUS, applies to "other toys," i.e., all toys not specifically provided for in the other headings of Chapter 95 (e.g., 9502 for dolls). The EN to heading 9503, HTSUS, indicates that the heading includes toys representing animals or non-human creatures, even if possessing predominantly human physical characteristics (e.g., angels, robots, devils, monsters). It is Customs position that the doll classification is denied 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 "Elmo" figure does possess non-human characteristics that are immediately apparent to the casual observer (e.g., bulbous eyes standing alone, furry exterior, no ears). Subheading 9503.41.0010, HTSUSA, provides for other toys, representing animals or non-human creatures, that are stuffed. It is our determination that the "Elmo" figure represents a non- human creature and is properly classified in subheading 9503.41.0010, HTSUSA.

HOLDING:

The "Elmo" version of the "Dress-Me-Up Pal" assortment, identified by item no. 365TPA, is properly classified in subheading 9503.41.0010 (formerly 9503.41.1000), HTSUSA, the provision for "Other toys...and accessories thereof: Toys representing animals or non-human creatures...: Stuffed toys...and accessories thereof, Stuffed toys." The applicable duty rate for entries of this merchandise made through December 31, 1994, was 6.8 percent ad valorem. Under the tariff effective January 1, 1995, the rate has been reduced to free.

Sincerely,

John Durant, Director

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