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HQ 957636




October 11, 1995

CLA-2 RR:TC:FC 957636 GGD

CATEGORY: CLASSIFICATION

TARIFF NO.: 9502.10.4000; 9503.49.0020; 9503.70.8000; 4911.99.6000

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

RE: Decision on Application for Further Review of Protest No. 3001-94-100747, filed December 19, 1994, concerning the classification of X-Men, X-Men Projectors, and other Marvel toy creatures and action figures

Dear Sir:

This is a decision on a protest timely filed in December 1994, against your decision in the classification of numerous entries made from May 1994 through July 1994, of X-Men and other Marvel action figures and toy creatures.

FACTS:

Most X-Men action figures (with the exception of the Projectors, Steel Mutants, and figures with absent or multiple appendages) measure approximately five inches in height. The approximate heights of the Projectors and Steel Mutants are 7 inches and 2-1/2 inches, respectively. Figures with multiple appendages and those that appear to be seated in or on various types of vehicles or crafts, measure approximately 3-1/2 inches in height. All figures (except the die-cast metal "Steel Mutants") are composed essentially of plastic. Most figures (including Projectors, Steel Mutants, and those in Mutant Hall of Fame) have two legs, are capable of standing erect, and have movable heads and upper and lower appendages (e.g., arms, legs, wings, tails, and/or weapons, etc.). Most figures appear to be very muscular. Many figures are packaged with small toy -2-
accessories 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." The Mutant Hall of Fame is packaged in a group of 10 figures (evil mutants and mutant heroes), with each figure's feet permanently attached to 1 collector display stand.

Each X-Men Projector article is composed of a figure, a projector within the figure's chest cavity, and 3 film disks. The projector component is composed of a small light bulb (powered by 2 "AAA" batteries, not included) behind a small lens, through which action images are projected onto a flat surface from 1 of 3 different film disks included in each package. 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."

Alternatively, the protestant asserts that retail packages containing two or more figures (i.e., Steel Mutants and Mutant Hall of Fame) should be classified in subheading 9503.70.8000 (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 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 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. -3-

Item 4810F

9502.10.4000
Invisible Woman
Daredevil
U.S. Agent
Punisher
Spiderman (Multi-Jointed)

Item 4900F

9502.10.4000 9503.49.0020
Professor X Ahab
Cyclops Brood
Longshot
Sabretooth

Item 4900G

9502.10.4000 9503.49.0020
Juggernaut Archangel
Cyclops Apocalypse
Magneto
Wolverine

Item 4900H

9502.10.4000 9503.49.0020
Wolverine II Archangel
Cyclops
Juggernaut
Gambit
Colossus

Item 4900K

9502.10.4000 9503.49.0020
Magneto Iceman
Storm Sauron
Mr. Sinister Night Crawler
Weapon X Wolverine -4-

Item 4950E

9502.10.4000 9503.49.0020
Pyro Quark
Shatterstar
Cable
Rictor
Sunspot

Item 49110 (X-Men Projectors)

9502.10.4000 9503.49.0020
Wolverine Apocalypse
Cyclops
Magneto
Sabretooth

Item 49220 (X-Men Steel Mutants)

9502.10.4000
Cable
Stryfe
Professor X
Magneto
Gambit
Bishop
Cyclops
Mr. Sinister

Item 49710

9502.10.4000
Bishop
Mr. Sinister
Gambit

Items 49740 and 49740J

9502.10.4000
Wolverine
Cyclops
Sabretooth -5-

Item 49800

9502.10.4000 9503.49.0020
Cyclops Iceman
Professor X Archangel
Wolverine Sauron
Juggernaut Apocalypse
Magneto
Sabretooth

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 components of the X-Men "Steel Mutants" and "Mutant Hall of Fame" are 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.

3) Whether the trading cards, toy weapons and toy tools are properly classified in the subheadings applicable to the individual items, or as accessories of the articles with which they are included.

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI). 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 may then be applied. The Explanatory Notes (EN) 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.

Heading 9502, HTSUS, provides for "Dolls representing only human beings and parts and accessories thereof." The EN 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. -6-

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 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 -7-
should "represent" human beings, and cited Webster's Third New International Dictionary (1961), which defines "represent" as 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 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 some 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)" and "Sabretooth," both 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 (which also covers much of the figure's upper torso, arms, and lower legs). The figure's head is extremely smooth and, other -8-
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. 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.

In considering whether the "Steel Mutants" and the "Mutant Hall of Fame" are 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)

The various pairs of "X-Men Steel Mutants" do not differ from one another. Each figure is a doll, the same type of article as the other item in the package. Therefore, even though the items are principally for amusement, they are classified in heading 9502, HTSUS, as dolls - not as other toys, put up in sets, and not as sets pursuant to GRI 3, which requires that goods be, prima facie, classifiable under two or more headings.

On the other hand, the figures which make up the "Mutant Hall of Fame" are different types of articles (i.e., both dolls and toys representing animals or non-human creatures). Although -9-
the manual play value of the figures is diminished by their permanent attachment to a collector's display stand, their collective appearance generates the same type of emotional reaction (i.e., amusement) one would derive from playing with the figures. In pertinent part, the American College Dictionary (1970), defines "amusement" as "1. state of being amused; enjoyment. 2. that which amuses; pastime; entertainment." The evil mutants and mutant heroes that compose the "Mutant Hall of Fame" are a collection of separately classifiable items, principally designed for amusement, put up in a form which clearly indicates their use as toys. The article, including the collector's stand intended to facilitate the use of the figures, is classified (in 1994) in subheading 9503.70.8000, HTSUSA.

We consider each X-Men Projector to be a composite article (consisting of a figure and a projector) with accessories (consisting of three film disks). Each article's essential character is imparted by the doll or toy animal/creature component.

With regard to 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. -10-

HOLDING:

Item 4810F

The figures identified as Invisible Woman, Daredevil, U.S. Agent, and Punisher are properly classified (in 1994) 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 figure identified as Spiderman (Multi-Jointed) is 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 (in 1994) is 6.8 percent ad valorem.

Item 4900F

The figures identified as Professor X, Cyclops, and Longshot are properly classified (in 1994) in subheading 9502.10.4000, HTSUSA.

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

Item 4900G

The figures identified as Juggernaut, Cyclops, Magneto and Wolverine are properly classified (in 1994) in subheading 9502.10.4000, HTSUSA.

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

Item 4900H

The figures identified as Wolverine II, Cyclops, Juggernaut, Gambit, and Colossus are properly classified (in 1994) in subheading 9502.10.4000, HTSUSA.

The figure identified as Archangel is properly classified in subheading 9503.49.0020, HTSUSA. -11-

Item 4900K

The figures identified as Magneto, Storm, Mr. Sinister, and Weapon X Wolverine are properly classified (in 1994) in subheading 9502.10.4000, HTSUSA.

The figures identified as Iceman, Sauron, and Night Crawler are properly classified in subheading 9503.49.0020, HTSUSA.

Item 4950E

The figures identified as Pyro, Shatterstar, Cable, Rictor, and Sunspot are properly classified (in 1994) in subheading 9502.10.4000, HTSUSA.

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

Item 49110 (X-Men Projectors)

The figures identified as Wolverine, Cyclops, and Magneto are properly classified (in 1994) in subheading 9502.10.4000, HTSUSA.

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

Item 49220 (X-Men Steel Mutants)

The figures identified as Cable, Stryfe, Professor X, Magneto, Gambit, Bishop, Cyclops, and Mr. Sinister are properly classified (in 1994) in subheading 9502.10.4000, HTSUSA.

Item 49710

The figures identified as Bishop, Mr. Sinister, and Gambit are properly classified (in 1994) in subheading 9502.10.4000, HTSUSA.

Items 49740 and 49740J

The figures identified as Wolverine and Cyclops are properly classified (in 1994) in subheading 9502.10.4000, HTSUSA. -12-

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

Item 49800

The article identified as the Mutant Hall of Fame, composed of a collector's display stand and 10 figures identified as Iceman, Cyclops, Professor X, Wolverine, Archangel, Juggernaut, Sabretooth, Sauron, Magneto, and Apocolypse (sic.), are properly classified (in 1994) 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 "Official Marvel Universe Trading Card" included with many of the figures, is properly classified in subheading 4911.99.6000, HTSUSA, the provision for "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 protest. A copy of this decision should be attached to the Form 19 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
Tariff Classification
Appeals Division

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