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February 2, 1996

HQ 957803


CLA-2 RR:TC: FC 957803 ASM

CATEGORY: CLASSIFICATION

TARIFF NO.: 9503.41.1000

Port Director of Customs
1000 2nd Ave.
Room 2200
Seattle, WA 98104

RE: Application for Further Review of Protest No. 3001-95-100096, Plush "Spiderman"

Dear Sir:

This is a decision on a Further Review of Protest No. 3001-95-100096, against your decision, in the classification of a plush figure identified as "Spiderman" (Item No. 47320).

FACTS:

The subject merchandise, was liquidated under subheading 9502.10.8000, of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), the provision for dolls, dutiable at 12 percent ad valorem.

The protestant seeks reclassification of the goods to subheading 9503.49.00, HTSUSA, as "toys representing animals or non-human creatures ...Other," which is dutiable at 6.8 percent ad valorem. The protestant asserts that Spiderman, other than having a human-shaped body, has no human characteristics.

ISSUE:

Whether the subject merchandise, a plush "Spiderman" figure (Item No. 47320) is classifiable as a "doll" under subheading 9502.10.8000, HTSUSA, or as "toys representing animals or non-human creatures...Other," under subheading 9503.49.00, HTSUSA.

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI's). The systemic 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. The Explanatory Notes to the Harmonized Commodity Description and Coding System (EN's), 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's.

Heading 9502, HTSUSA, provides for "Dolls representing only human beings and parts and accessories thereof." The EN's 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, HTSUSA, applies to "other toys," i.e., all toys not specifically provided for in the other headings of Chapter 95. The EN's to heading 9503, HTSUSA, 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 EN's above and discussing the relationship of competing headings 9502 and 9503, HTSUSA. 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 committee 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.

The subject article is a stuffed figure of the "Marvel Comics" character identified as "Spiderman." The article is constructed of plush blue and red fabric. The red fabric has been printed with a black spider web design and a large spider has been printed on the front and back of the figure. The head of this figure is clearly non-human in appearance. The head is constructed of red fabric and is completely covered with the spider web design. It is smooth and completely devoid of such human characteristics as hair, nose, mouth, and ears. The most prominent feature of the head consists of two large tear drop shaped eyes having a white center and black outline. The eyes are clearly non-human in that they have no eye lids, iris, or pupils.

Taken as a whole, it is evident that the figure is non-human because its face is devoid of any human characteristics. Further, in its condition as imported, there is no way to determine underlying characteristics that might lead to a conclusion that the figure is a human doll. The article is sewn and stuffed, and has no accessories or removable clothing. As such, it is our determination that this article, identified as a plush "Spiderman" (Item No. 47320), should be classified under subheading 9503.21.1000, HTSUSA, as a stuffed toy representing a non-human creature.

HOLDING:

The subject merchandise, is properly classified under subheading 9503.41.1000, 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: Stuffed toys and parts and accessories thereof: Stuffed toys." The applicable rate of duty (in 1994) is 6.8 percent ad valorem.

Since reclassification of the merchandise as indicated above would result in the same rate of duty as claimed, you are instructed to allow the protest in full. A copy of this decision should be attached to the Form 19, Notice of Action.

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 entry 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 the public via the Diskette Subscription Service, Freedom of Information Act, and other public access channels.

Sincerely,

John Durant, Director
Tariff Classification

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