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HQ 956868

January 4, 1995

CLA-2 CO:R:C:F 956868 GGD


TARIFF NO.: 9502.10.40

Donald S. Stein, Esquire
Manatt, Phelps & Phillips
1200 New Hampshire Avenue, N.W.
Suite 200
Washington, D.C. 20036-6889

RE: Reconsideration of DD 899819; "Power Bots" Action Figures; Not Toys Representing Non-Human Creatures

Dear Mr. Stein:

This letter is in response to your request of August 5, 1994, on behalf of your clients, K-Mart Corporation and Trendmaster, Inc., for reconsideration of Chicago District Ruling Letter (DD) 899819, issued July 15, 1994, concerning the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of action figures imported from China. A sample was submitted with the original ruling request. Subsequent to your request for reconsideration, a conference was held with Headquarters personnel on November 29, 1994. Samples and an additional written submission, dated December 8, 1994, have been received and considered.


In DD 899819, Customs classified the articles in subheading 9502.10.40, HTSUS, the provision for "Dolls representing only human beings and parts and accessories thereof: Dolls, whether or not dressed: Other: Not over 33 cm in height." The sample article, identified by K-Mart code no. 04-97-34, is a poseable, plastic action figure that measures approximately 7-1/2 inches in height. The retail package contains 1 action figure and relates that there are 6 "Power Bots," named Echo, Kelly, Black Jack, Red, Chick, and Gordon, that they are "Mighty Peacekeepers From a Distant Galaxy," and that each has specific, individual powers. Each figure also has its own pair of small, plastic, hand-held -2-
weapons included in the package. The figures all have muscular torsos, arms, and legs, and all extremities are jointed. Each figure has a head (covered by a non-removable helmet), a neck, two hands (each with a thumb and four fingers), and what appear to be two sleekly booted feet. Small metal screws are visible, most of which are recessed far beneath the figure's surface.


Whether the action figures are properly classified in heading 9503, HTSUS, as other toys representing non-human creatures, or in heading 9502, as dolls representing only human beings.


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.

Heading 9502, HTSUS, provides for "Dolls representing only human beings and parts and accessories thereof." The ENs to heading 9502 indicate that the heading includes not only dolls designed for the amusement of children, but also dolls intended for decorative purposes, or those of a caricature type.

Heading 9503, HTSUS, applies to "other toys," i.e., all toys not specifically provided for in the other headings of Chapter 95. 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).

Customs has issued several decisions interpreting and applying the EN above, and discussing the relationship of competing headings 9502 and 9503, HTSUS. In Headquarters Ruling Letter (HRL) 086088, dated February 21, 1990, we stated the following: -3-

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 this case, you assert that the figures were designed as robots, are marketed as such, and that they have no human features. You state that the screws remain exposed to make the figures appear bio-mechanical, and that the muscular definition reflects efforts to avoid any finding that the "Power Bots" infringe the "Mighty Morphin Power Rangers" (whose bodies are not overly muscular), not to make the figures appear human. You also cite to New York Ruling Letter (NYRL) 885863, issued June 3, 1993, in which poseable toy robots called "Z-Bots" were classified in subheading 9503.49.0020, HTSUS. You maintain that the eight sample "Z-Bots" you submitted contain more human-like features than the "Power Bots" (such as mouths and eyes), but are similar in that they both use the term "bot," have muscle definition on the upper torso, and contain no flesh colored surfaces.

Although samples of the "Z-Bot" articles classified as toy robots in NYRL 885863 were returned to the importer and are not currently available, we note that each of the eight samples of "Z-Bots" which you have submitted possess non-human characteristics that are immediately apparent to the casual observer (e.g., platform-type feet, hydraulic-type tubes, bolted joints, machine heads, wings, weapons in place of hands, etc.). -4-

Although a few of the toys have mouths and/or eyes, those features are decidedly non-human. Upon examination of the "Power Bot" sample, we can discern no characteristics that are non- human, aside from the small screws (which appear necessary to secure the figure's extremities and torso at the many joints) and a lack of exposed, flesh-colored plastic. Your essential contention appears to be that the absence of visible human facial features, without the presence of immediately apparent, non-human characteristics, provides a sufficient basis upon which to deny the doll classification. We disagree.

In Headquarters Ruling Letter (HRL) 085855, issued August 9, 1990, this office affirmed the doll classification of a "Beetlejuice" figure, which represented the ghost character from a popular movie and television show. The doll featured characteristics claimed to be non-human, but which could only be discovered by close examination. We stated that "[i]n order not to be classified as dolls, figures representing...other creatures, must possess appendages and features which immediately, at first glance, identify them as non-human." In this case, we find that the "Power Bot's" small metal screws and helmeted head are not non-human characteristics immediately apparent to a casual observer, particularly in light of the figure's otherwise overwhelmingly human appearance. It is our determination that "Power Bots" represent human beings and are properly classified in subheading 9502.10.40, HTSUS, as dolls.


The "Power Bots" action figures, identified by K-Mart code no. 04-97-34, are properly classified in subheading 9502.10.40, HTSUS, the provision for "Dolls representing only human beings and parts and accessories thereof: Dolls, whether or not dressed: Other: Not over 33 cm in height." The applicable duty rate for entries made through December 31, 1994, was 12 percent ad valorem. Under the tariff effective January 1, 1995, the rate has been reduced to free.

DD 899819, dated July 15, 1994, is hereby affirmed.


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