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HQ 958243




February 28, 1996

CLA-2 RR:TC:FC 958243 RC

CATEGORY: CLASSIFICATION

TARIFF NO.: 9503.49.0020

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

RE: Decision on Application for Further Review of Protest No. 3001-95-100295, filed
April 13, 1995, concerning the classification of various toy creatures and action figures

Dear Sir:

This is a decision on a protest timely filed April 13, 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 9503.49.0020, 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," dutiable at 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 44100
Maximum Carnage

Item 47360
Spider-man
Venom
All figures have two legs and are capable of standing erect. Their heads and appendages, both upper and lower (e.g., arms, legs, and/or weapons, etc.) are moveable. They appear muscular. Some figures are packaged with small toy accessories such as weapons or tools.

ISSUE:

Whether the figures fall into heading 9502, HTSUS, as dolls representing only human beings, or in heading 9503, HTSUS, as other toys representing animals or non-human creatures.

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 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 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."

We find that the "Maximum Carnage," "Spider-man," and "Venom" figures classified at entry as falling into heading 9502, HTSUS, manifest non-human characteristics immediately apparent to a casual observer.

At first glance, the "Maximum Carnage," "Spider-man," and "Venom" figures appear to have insect- or creature-like features. Close examination is not required to discover that they all, lack human-like features such as a mouth, a nose, ears, hair, skin, etc. "Maximum Carnage" and "Venom," for example, have mouths that look more dog-like than human. "Spider-man" does not even have a mouth. They all have eyes that look more insect-like than human. 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 "Maximum Carnage," "Spider-man," and "Venom," provide a basis upon which to re-classify these items in heading 9503, HTSUS, as toys representing animals or non-human creatures. As such, the figures fall into heading 9503, HTSUS, a position supported by the ENs.

HOLDING:

The figures identified as "Maximum Carnage," "Spider-man," 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 (1994).

You are instructed to allow the protest in full. 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

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