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HQ 950200


December 18, 1991
CLA-2 CO:R:C:F 950200 STB

CATEGORY: CLASSIFICATION

TARIFF NO.: 9503.49.0020

Director, New York Seaport Area
U.S. Customs Service
6 World Trade Center
New York, NY 10048

RE: Decision on Application for Further Review of Protest No. 1001-91-000749, filed January 24, 1991, concerning the classification of several troll figures manufactured in Hong Kong.

Dear Area Director:

This is a decision on a protest filed January 24, 1991, against your decision on the classification and liquidation of entry no. xxx-xxxxxxx-x, made on June 23, 1990, and liquidated on October 26, 1990.

FACTS:

The merchandise was entered and classified under subheading 9502.10.4000, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), the provision for unstuffed dolls, dutiable at a rate of 12% ad valorem. Protestant claims that the proper classification is subheading 9503.49.0020, HTSUSA, the provision for toys representing non-human creatures. The applicable duty rate for this provision is 6.8% ad valorem.

Various samples of the line of merchandise were submitted by the importer. One sample, item no. 11377, is wearing a shirt resembling a football jersey with "PACKERS" and "TM" printed on the front. A tag on the figure identifies this item as a "Good Luck Troll." Another sample, item no. 2988, is wearing no clothes and is also identified by tag as a "Good Luck Troll." A third sample, item no. 2979, sports no clothes other than a green, red and white scarf and green long pointed shoes; this figure is identified by tag as a "Merry Little Troll" and appears to imply a Christmas theme. Several other samples were also submitted.

The physical features of all of the submitted troll figures are essentially identical with the exception of hair color which varies from red, yellow and other colors. They are pot-bellied, flesh-colored plastic figures standing erect on two legs at approximately 3 inches in height. The feet, which are visible on almost all of the samples, have four toes each and the hands have four fingers. They have very long textile hair, of varying colors, which extends from a flat head; there is virtually no forehead. The portion of the head where the eyes are placed curves inward in a sharp angle and then gives way to a large upturned snout rather than a nose. The eyes of the figures are formed into very large pupils surrounded by a brown iris. They have neither eyebrows nor eyelashes nor eyelids. The ears fan straight out from the head.

ISSUE:

Whether the troll figures should be classified as dolls or as toys representing non-human creatures?

LAW AND ANALYSIS:

Classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is made in accordance with the General Rules of Interpretation (GRI's). 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 GRI's may then be applied.

Heading 9502, HTSUSA, provides for "[D]olls representing only human beings and parts and accessories thereof." Explanatory Note 95.02 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 use in Punch and Judy or marionette shows, or those of the caricature type." The Explanatory Note further states that 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, HTSUSA, provides for "other toys; reduced- size ("scale") models...parts and accessories thereof...."

Explanatory Note 95.03 states that, among other things, this 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.

Customs has issued several decisions interpreting and applying the above Explanatory Notes and discussing the relationship of heading 9502 and 9503, HTSUSA, when they are competing headings. In Headquarters Ruling Letter (HRL) 086088, dated February 21, 1990, we 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.

It is Customs position that the intent of the committees in reaching this conclusion is to deny the doll classification 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 phrase "close examination" may encompass the need to look closely, the need to remove the clothes of the figure, or perhaps even the need of the observer to guess as to whether a feature that appears to be non-human is, in actuality, such a feature. Most angels and devils possess readily apparent non-human features, i.e., halos, large wings, visible horns, pointed tails, etc. However, if a figure is marketed as an angel or devil, and yet appears human to the casual observer, then, again, the doll classification may be appropriate.

In HRL 085855, dated August 9, 1990, we discussed the above test and also noted that a person viewing a figure should be able to identify the figure as non-human without the necessity of viewing a particular movie or knowing a particular storyline. However, we also stated in HRL 085855 that there must be an "established popular culture" exception to the storyline rule. Some knowledge of angels, devils and certain monsters is necessary to immediately identify the typical characteristics of these beings as rendering the figures non-human.

HRL 081201, dated October 3, 1988, concerned troll figures very similar to those at issue here. In that ruling, we noted that the Explanatory Notes state that dolls should "represent" human beings and we cited Webster's Third New International Dictionary (1961) which defines "represent" to mean "to portray by pictorial, plastic, or musical art: delineate, depict...to serve as the counterpart or image of: typify." In that case we held that although certain troll figures may have, to some extent "resembled" human beings, they did not "represent" human beings and thus were not dolls. HRL 089895, dated November 4, 1991, also concerned troll figures very similar to those at issue in this ruling; those figures, as well, were not classified as dolls.

As was the case with the trolls discussed in HRL 081201 and HRL 089895, it is immediately apparent to the casual observer that the figures which are the subject of this ruling do not represent human beings, but rather represent a widely recognized non-human creature, i.e., a troll.

HOLDING:

The troll figures are classified under subheading 9503.49.0020, HTSUSA, the provision for toys representing animals or non-human creatures (for example, robots and monsters) and parts and accessories thereof, other than stuffed, not having a spring mechanism, other. The applicable duty rate is 6.8% ad valorem.

The protest should be allowed in full. A copy of this
decision should be attached to the Form 19 to be returned to the protestant.

Sincerely,

John Durant, Director

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