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HQ 957603




October 12, 1995

CLA-2 RR:TC:FC 957603 GGD

CATEGORY: CLASSIFICATION

TARIFF NO.: 9502.10.4000; 9503.49.0010; 9503.49.0020; 9503.70.8000

Port Director of Customs
1000 Second Avenue, Suite 2200
Seattle, Washington 98104-1049

RE: Decisions on Applications for Further Review of Protest Nos. 3001-94-100409, filed June 23, 1994; 3001-94-100499, filed August 9, 1994; 3001-94-100524, filed August 25, 1994; and 3001-94-100644, filed October 27, 1994; concerning the classification of X-Men and other Marvel toy creatures and action figures

Dear Sir:

These are decisions on four protests timely filed in August and October, 1994, against your decisions in the classification of numerous entries made from November 1993 through April 1994, of X-Men and other Marvel action figures and toy creatures.

FACTS:

In the first protest, no. 3001-94-100409, the protestant claims that all the figures possess readily apparent non-human features (e.g., fangs, claws, abnormally shaped skulls, etc.), and that all the merchandise should be classified in subheading 9503.49.0020, HTSUSA, the provision for "Other toys...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."

You classified each figure in either subheading 9503.49.0020, HTSUSA, dutiable at 6.8 percent ad valorem, or 9502.10.4000 (now 9502.10.0020), HTSUSA, the provision for "Dolls -2-
representing only human beings and parts and accessories thereof: Dolls, whether or not dressed: Other: Not over 33 cm in height," dutiable at 12 percent ad valorem. You also identified each doll or toy creature by name under the item no. in which the article is included, as indicated below.

Item 4810E

9502.10.4000 9503.49.0020
Captain America Venom
Dr. Octopus
Spiderman (Multi-Jointed)
The Punisher
Incredible Hulk
Dr. Doom

Item 4900G

9502.10.4000 9503.49.0020
Juggernaut Archangel
Cyclops Apocalypse
Magneto
Wolverine

Item 4900C

9502.10.4000 9503.49.0020
Wolverine II Sauron
Weapon X Wolverine
Banshee
Gambit
Magneto

Item 4900E

9502.10.4000 9503.49.0020
Wolverine Tusk
Bishop Apocalypse
Strong Guy
Omega Red -3-

Item 4950C

9502.10.4000
Cable II (Space)
Cannonball
Kane
Crule
Cable III (Rocket Firing)
Grizzly

Item 49740

9502.10.4000
Wolverine
Cyclops
Sabretooth

Item 49601KB

9502.10.4000
Wolverine V

In the second protest, no. 3001-94-100499, the protestant again claims that all the figures should be classified in subheading 9503.49.0020, HTSUSA. You classified each figure in either subheading 9502.10.4000, HTSUSA, or subheading 9503.49.0020, HTSUSA, again identifying each doll or toy creature by name under the item number in which the article is included, as indicated below.

Item 49603WM

9502.10.4000 9503.49.0020
Professor X Ahab
Cyclops
Mr. Sinister
Wolverine T.S.
Sabretooth II

Item 4900F

9502.10.4000 9503.49.0020
Professor X Ahab
Cyclops Brood
Longshot
Sabretooth -4-

Item 4950C

9502.10.4000
Cable II (Space)
Cannonball
Kane
Crule
Cable III (Rocket Firing)
Grizzly

Item 49602WM

9502.10.4000 9503.49.0020
Strong Guy Tusk
Wolverine Apocalypse
Omega Red
Bishop

In protest no. 3001-94-100524, the protestant claims that all the figures should be classified in subheading 9503.49.0020, HTSUSA, and that alternatively, retail packages containing two or more figures (i.e., item no. 49210 - "X-Men Steel Mutants," having two die-cast metal figures per package) should be classified in subheading 9503.70.80 (now 9503.70.0030), HTSUSA, the provision for "Other toys...and accessories thereof: Other toys, put up in sets or outfits, and parts and accessories thereof: Other: Other," with an applicable duty rate of 6.8 percent ad valorem.

You classified each doll figure (whether of plastics or die-cast metal) in subheading 9502.10.4000, HTSUSA, and each of the toy creatures in either subheading 9503.49.0020, HTSUSA (if of plastics), or 9503.49.0010, HTSUSA (if of die-cast metal), the provision for "Other toys...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: Of metal," with an applicable duty rate of 6.8 percent ad valorem. You again identified each doll or toy creature by name under the item number in which the article is included, as indicated below. -5-

Item 49210 (X-Men Steel Mutants)

9502.10.4000 9503.49.0010
Wolverine Archangel
Cyclops Apocalypse
Juggernaut
Wolverine Spy
Omega Red
Sabretooth

Item 4900F

9502.10.4000 9503.49.0020
Professor X Ahab
Cyclops Brood
Longshot
Sabretooth

Item 49602WM

9502.10.4000 9503.49.0020
Strong Guy Tusk
Wolverine Apocalypse
Omega Red
Bishop
Item 4900E

9502.10.4000 9503.49.0020
Wolverine Tusk
Bishop Apocalypse
Strong Guy
Omega Red

In protest no. 3001-94-100644, the protestant contends that all the figures should be classified in subheading 9503.49.0020, HTSUSA. You classified each figure in either subheading 9502.10.4000, HTSUSA, or subheading 9503.49.0020, HTSUSA, again identifying each doll or toy creature by name under the item number in which the article is included, as indicated below. -6-

Item 4900K

9502.10.4000 9503.49.0020
Magneto Iceman
Storm Sauron
Mr. Sinister Night Crawler
Weapon X Wolverine

Item 4900H

9502.10.4000 9503.49.0020
Wolverine II Archangel
Cyclops
Juggernaut
Gambit
Colossus

Item 4900F

9502.10.4000 9503.49.0020
Professor X Ahab
Cyclops Brood
Longshot
Sabretooth

Item 49710

9502.10.4000
Bishop
Mr. Sinister
Gambit

All two-legged figures (with the exception of the X-Men Steel Mutants) measure approximately five inches in height. The Steel Mutant figures measure approximately 2-1/2 inches in height. All two-legged figures are capable of standing erect. All figures have movable heads and appendages, both upper and lower (e.g., arms, legs, wings, tails, and/or weapons, etc.). Most figures appear to be very muscular. Some figures have several lower appendages, or appear to be seated in or on various types of vehicles or crafts (in which cases lower appendages are not visible). Those figures generally measure 3-1/2 inches in height. Many figures are packaged with small toy accessories -7-
such as weapons or tools, and/or with an "Official Marvel Universe Trading Card" that describes an X-Men figure unrelated to the figure in the package. The Steel Mutants are packaged in pairs and marketed as "Duelling Combos [composed of an evil mutant and a mutant hero] For The Ultimate In Heavy Duty Action." ISSUES:

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

2) Whether the toy figures retail packaged in pairs are more properly classified in the subheadings applicable to the individual items, or in subheading 9503.70.80, HTSUS, the provision for other toys, put up in sets.

LAW AND ANALYSIS:

Classification under the HTSUSA 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 HTSUSA 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 ENs to heading 9503, HTSUS, indicate that the heading -8-
includes toys representing animals or non-human creatures, even if possessing predominantly human physical characteristics (e.g., angels, robots, devils, monsters).

Customs has issued numerous decisions interpreting and applying the ENs 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:

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 HRLs 081201 and 089895, issued October 3, 1988 and November 4, 1991, respectively, we classified certain troll figures that were described, in pertinent part, as being pot-bellied, flesh-colored, erect-standing figures, having flat heads with virtually no foreheads, pointed ears, and large, upturned snouts. We noted the guidance provided by the ENs, that dolls should "represent" human beings, and cited Webster's Third New International Dictionary (1961), which defines "represent" as -9-
meaning "to portray by pictorial, plastic, or musical art: delineate, depict...to serve as the counterpart or image of: typify." In each case, we held that, while certain troll figures may have "resembled" human beings to some extent, it was immediately apparent to the casual observer that the subject figures did not "represent" humans, but rather represented widely recognized non-human creatures, i.e., trolls.

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."

Looking to the figures that have been classified as dolls in this case, we note that in most instances, the patent distortions essentially consist of such features as odd skin color, intricate headgear, capes which bear resemblance to wings, weaponry that is uniquely attached to, but is not an integral part of, the body, etc. As noted above, when a figure's non-human features can only be discovered by close examination, the doll classification may be appropriate.

With a few exceptions listed below, we find that the figures classified in heading 9502, HTSUS, do not manifest non-human characteristics immediately apparent to a casual observer, particularly in light of each figure's otherwise overwhelmingly human appearance. With respect to the exceptions referenced above, our examination of numerous samples of the figures identified as "Spiderman (Multi-Jointed)," "Sabretooth," and "Dr. Doom," all classified as dolls, now provides a basis upon which to classify these items in heading 9503, HTSUS, as toys representing animals or non-human creatures.

Non-human features immediately apparent on the multi-jointed Spiderman are its two triangular-shaped, pink eyes. The eyes are outlined in black and appear to form the central portion of a web -10-

(which also covers much of the figure's upper torso, arms, and lower legs). The figure's head is extremely smooth and, other than the eyes, is devoid of features. Close examination (e.g., the removal of a helmet, hood, or other headgear) is not required to discover that the creature has no mouth, nose, ears, hair, etc.

The appendages and features which immediately identify Sabretooth as an other toy representing an animal or non-human creature include a blond, fur-like hump across the upper back and tops of the shoulders (which matches the appearance of fur on the head, eyebrows, and cheeks); partially visible fangs; fingers that are long, sharp, and gnarled; and spiked elbows.

Dr. Doom's non-human characteristics include the appearance of metal upper and lower extremities and a metallic head. The creature's face is crisscrossed by rows of rivet marks. It has reinforced rectangles for eye openings, and an open mouth surrounded by rivet marks and blocked by bars, one horizontal and two vertical. Although these figures were classified in subheading 9502.10.4000, HTSUSA, we find that it would be immediately apparent to the casual observer that the articles do not represent humans, but rather animals or non-human creatures.

With regard to whether articles packaged to contain two figures (i.e., the four pairs of "X-Men Steel Mutants" in item no. 49210) are more properly classified in the subheadings applicable to the individual items, or as other toys, put up in sets, we note that the ENs to heading 9503 indicate that certain toys, including toy arms, tools, gardening sets, tin soldiers, etc., are often put up in sets, and that collections of items separately classifiable in other headings are classified in chapter 95 when put up in a form clearly indicating their use as toys (e.g., instructional toys such as chemistry sets, sewing sets, etc.). We also look to the recently added "Subheading Explanatory Note to Subheading 9503.70," which states in pertinent part that for the purpose of the subheading:

(i) "Sets" are two or more different types of articles (principally for amusement), put up in the same packing for retail sale without repacking. Simple accessories or objects of minor importance intended to facilitate the use of the articles may also be included. (Emphasis added)

Although each of the four "Steel Mutants" items is composed of a pair of figures put up in the same packing principally for amusement, only one pair of the four is composed of articles -11-
which differ from one another, i.e., the pair consisting of Wolverine (a doll classifiable in heading 9502, HTSUS) and Sabretooth (a toy animal/creature classifiable in heading 9503). Since the complete article which this pair of figures comprises is a collection of separately classifiable items, principally designed for amusement, put up in a form which clearly indicates their use as toys, the article is classified in subheading 9503.70.8000, HTSUSA, as other toys put up in sets.

Since each of the other three "Steel Mutants" articles is composed of either two dolls or two toy animals/creatures, they are not classifiable in subheading 9503.70.8000, HTSUSA, nor as sets pursuant to GRI 3, since that rule requires that goods be, prima facie, classifiable under two or more headings. They are separately classifiable in the subheadings applicable to the individual items.

In considering the classification of the toy weapons and equipment that accompany many of the X-Men figures, we note that in HRL 957196, issued February 17, 1995, this office classified certain retail packages, each of which contained at least two "skeleton action figures" and their accessories. The accessories included in each package were one spring-loaded accessory (such as a bazooka, cannon, or mortar) and at least two small toys fitted for the figures' hands (such as pistols, rifles, swords, etc.). We found that the toy creatures and their accessory toys were both provided for in subheading 9503.49.0020, HTSUSA. Consistent with our determination in HRL 957196, the accessory toys and equipment included in many of the retail packages of X-Men figures are classified with (in the same subheading as) the doll or toy creature that the toys accompany.

With respect to the classification of the "Official Marvel Universe Trading Card" included with many of the figures, we note that, although the trading cards picture and describe the powers of individual X-Men figures, each card has no connection to the figure with which it is packaged. The trading cards must therefore be separately classified. Heading 4911, HTSUS, applies to "Other printed matter, including printed pictures and photographs." The ENs to heading 4911 indicate that among other items, the heading includes advertising matter (including posters) and anatomical instructional charts and diagrams. The trading cards are classified in subheading 4911.99.6000, HTSUSA. -12-

HOLDING:

Protest No. 3001-94-100409

Item 4810E

The figures identified as Captain America, Dr. Octopus, The Punisher, and Incredible Hulk are classified in subheading 9502.10.4000, HTSUSA, 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 rate of duty is 12 percent ad valorem.

The figures identified as Spiderman (Multi-Jointed), Dr. Doom, and Venom are classified in subheading 9503.49.0020, HTSUSA, the provision for "Other toys...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 applicable rate of duty is 6.8 percent ad valorem.

Item 4900G

The figures identified as Juggernaut, Cyclops, Magneto and Wolverine are classified in subheading 9502.10.4000, HTSUSA.

The figures identified as Archangel and Apocalypse are classified in subheading 9503.49.0020, HTSUSA.

Item 4900C

The figures identified as Wolverine II, Weapon X Wolverine, Banshee, Gambit, and Magneto are classified in subheading 9502.10.4000, HTSUSA.

The figure identified as Sauron is classified in subheading 9503.49.0020, HTSUSA.

Item 4900E

The figures identified as Wolverine, Bishop, Strong Guy, and Omega Red are classified in subheading 9502.10.4000, HTSUSA. -13-

(Holding - Protest No. 3001-94-100409 Continued)

The figures identified as Tusk and Apocalypse are classified in subheading 9503.49.0020, HTSUSA.

Item 4950C

The figures identified as Cable II (Space), Cannonball, Kane, Crule, Cable III (Rocket Firing), and Grizzly are classified in subheading 9502.10.4000, HTSUSA.

Item 49740

The figures identified as Wolverine and Cyclops are classified in subheading 9502.10.4000, HTSUSA.

The figure identified as Sabretooth is classified in subheading 9503.49.0020, HTSUSA.

Item 49601KB

The figure identified as Wolverine V is classified in subheading 9502.10.4000, HTSUSA.

Protest No. 3001-94-100499

Item 49603WM

The figures identified as Professor X, Cyclops, Mr. Sinister, and Wolverine T.S. are properly classified in subheading 9502.10.4000, HTSUSA, 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 rate of duty is 12 percent ad valorem.

The figures identified as Sabretooth II and Ahab are properly classified in subheading 9503.49.0020, HTSUSA, the provision for "Other toys...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 applicable rate of duty is 6.8 percent ad valorem. -14

(Holding - Protest No. 3001-94-100499 Continued)

Item 4900F

The figures identified as Professor X, Cyclops, and Longshot are properly classified in subheading 9502.10.4000, HTSUSA.

The figures identified as Ahab, Brood, and Sabretooth are properly classified in subheading 9503.49.0020, HTSUSA.

Item 4950C

The figures identified as Cable II (Space), Cannonball, Kane, Crule, Cable III (Rocket Firing), and Grizzly are classified in subheading 9502.10.4000, HTSUSA.

Item 49602WM

The figures identified as Strong Guy, Wolverine, Omega Red, and Bishop are properly classified in subheading 9502.10.4000, HTSUSA.

The figures identified as Tusk and Apocalypse are properly classified in subheading 9503.49.0020, HTSUSA.

Protest No. 3001-94-100524

Item 49210 (X-Men Steel Mutants)

The article composed of the figures identified as Wolverine and Sabretooth are properly classified in subheading 9503.70.8000, HTSUSA, the provision for "Other toys...and accessories thereof: Other toys, put up in sets or outfits, and parts and accessories thereof: Other: Other." The applicable rate of duty is 6.8 percent ad valorem.

The figures identified as Cyclops, Juggernaut, Wolverine Spy, and Omega Red are properly classified in subheading 9502.10.4000, HTSUSA, the provision for "Dolls representing only human beings and parts and accessories -15-

(Holding - Protest No. 3001-94-100524 Continued)
thereof: Dolls, whether or not dressed: Other: Not over 33 cm in height." The applicable rate of duty is 12 percent ad valorem.

The figures identified as Archangel and Apocalypse are properly classified in subheading 9503.49.0010, HTSUSA, the provision for "Other toys...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: Of metal." The applicable rate of duty is 6.8 percent ad valorem.

Item 4900F

The figures identified as Professor X, Cyclops, and Longshot are properly classified in subheading 9502.10.4000, HTSUSA.

The figures identified as Ahab, Brood, and Sabretooth are properly classified in subheading 9503.49.0020, HTSUSA.

Item 49602WM

The figures identified as Strong Guy, Wolverine, Omega Red, and Bishop are properly classified in subheading 9502.10.4000, HTSUSA.

The figures identified as Tusk and Apocalypse are properly classified in subheading 9503.49.0020, HTSUSA.

Item 4900E

The figures identified as Wolverine, Bishop, Strong Guy, and Omega Red are classified in subheading 9502.10.4000, HTSUSA.

The figures identified as Tusk and Apocalypse are properly classified in subheading 9503.49.0020, HTSUSA. -16-

Protest No. 3001-94-100644

Item 4900K

The figures identified as Magneto, Storm, Mr. Sinister, and Weapon X Wolverine are properly classified in subheading 9502.10.4000, HTSUSA, 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 rate of duty is 12 percent ad valorem.

The figures identified as Iceman, Sauron, and Night Crawler are properly classified in subheading 9503.49.0020, HTSUSA, the provision for "Other toys...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 applicable rate of duty is 6.8 percent ad valorem.

Item 4900H

The figures identified as Wolverine II, Cyclops, Juggernaut, Gambit, and Colossus are properly classified in subheading 9502.10.4000, HTSUSA.

The figure identified as Archangel is properly classified in subheading 9503.49.0020, HTSUSA.

Item 4900F

The figures identified as Professor X, Cyclops, and Longshot are properly classified in subheading 9502.10.4000, HTSUSA.

The figures identified as Ahab, Brood, and Sabretooth are properly classified in subheading 9503.49.0020, HTSUSA.

Item 49710

The figures identified as Bishop, Mr. Sinister, and Gambit are properly classified in subheading 9502.10.4000, HTSUSA.

The "Official Marvel Universe Trading Card" included with many of the figures in all four protests above, is properly classified in subheading 4911.99.6000, HTSUSA, the provision for -17

"Other printed matter, including printed pictures and photographs: Other: Other: Other: Printed on paper in whole or in part by a lithographic process." The applicable rate of duty is 0.4 percent ad valorem.

Except to the extent that reclassification of the merchandise as indicated above results in net duty reductions and partial allowances, you are instructed to deny the protests. A copy of this decision should be attached to the Form 19's to be returned to the protestant.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entries in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision, the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS, and to the public via the Diskette Subscription Service, the Freedom of Information Act, and other public access channels.

Sincerely,

John Durant, Director

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