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HQ 958129




February 27, 1996

CLA-2 RR:TC:FC 958129 RC

CATEGORY: CLASSIFICATION

TARIFF NO.: 9503.49.0010; 9503.70.8000

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

RE: Decision on Application for Further Review of Protest No. 3001-95-100225, filed
March 21, 1995, concerning the classification of various toy creatures and action figures

Dear Sir:

This is a decision on a protest timely filed March 21, 1995, against your decision in the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of articles entered in September 1994, consisting of action figures and toy creatures.

FACTS:

The protestant claims that some figures possess readily apparent non-human features (e.g., fangs, claws, abnormally shaped skulls, etc.), and that these figures should be 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," dutiable at 6.8 percent ad valorem.

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 subheading 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 figure by name under the item no. in which the article is included, as indicated below:

Item 47210

Dr.
Octopus/Spider-man
Hobgoblin/Spider-man
Venom/Spider-man
Carnage/Spider-man
All are 2-1/2 inch die-cast metal two-legged figures capable of standing erect. They appear muscular. Each Spider-man figure is sold paired with a different figure. Included is a display stand.

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 Spider-man "Steel Mutants" 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.

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 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 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.

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 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, weaponry or wings that are 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 the 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 photographic samples depicting the figures identified as "Spider-man," "Venom," and "Carnage," 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.

At first glance, the "Spider-man," "Venom," and "Carnage" figures appear to be insects or creatures. Close examination is not required to discover that they all, for the most part, lack human-like features such as a mouth, a nose, ears, hair, skin, etc. If they have a mouth, like Carnage, it looks more dog-like than human. If they have eyes, they look more insect-like than human. Carnage has a body appearing bumpy, like that of a reptile or an elephant. Although these figures were classified in subheading 9502.10.4000, HTSUSA, we find the casual observer would immediately see that the articles do not appear to represent humans, but rather non-human creatures. The non-human features identifying the figures as "Spider-man," "Venom," and "Carnage" provide a basis upon which to re-classify these items in heading 9503, HTSUS, as toys representing animals or non-human creatures.

With regard to whether articles packaged to contain two figures (i.e., the four pairs here) 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 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 which differ from one another, i.e., the pairs consisting of Hobgoblin (a doll classifiable in heading 9502, HTSUS) and Spider-man (a toy animal/creature classifiable in heading 9503); Dr. Octopus (a doll classifiable in heading 9502, HTSUS) and Spider-man (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 the other two pairs of figures are composed of two toy animals/creatures, they are not classifiable in subheading 9503.70.8000, HTSUSA, nor as sets pursuant to GRI 3, since that rule covers goods that are, prima facie, classifiable under two or more headings. They are separately classifiable in the subheadings applicable to the individual items.

HOLDING:

The pairs of figures identified as "Spider-man vs. Venom," and "Spider-man vs. Carnage," fall into 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 (1994).

The pairs of figures identified as "Spider-man vs. Hobgoblin," and "Spider-man vs. Dr. Octopus," fall into 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 (1994).

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
Tariff Classification

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