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HQ 958345




March 11, 1996

CLA-2 RR:TC:FC 958345 RC

CATEGORY: CLASSIFICATION

TARIFF NO.: 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. 3001-95-100473, filed
July 12, 1995, concerning the classification of toys called Pocket Comics

Dear Sir:

This is a decision on a protest timely filed July 12, 1995, against your decision in the classification of numerous entries made from April through December 1994, of toys called Pocket Comics.

FACTS:

Each Pocket Comics contains (1) two little plastic figures measuring between an inch and an inch and a half in height, (2) a molded plastic box measuring approximately four and one half inches, by three inches, by one inch, called an "environment," and (3) a trading card. They are identifiable by the following item numbers:

Item 49200
(X-Men Pocket Comics)

Item 49201
Wolverine
Sabretooth
Environment
Trading Card Item 49202
Magneto
Beast
Environment
Trading Card Item 49203
Wolverine
Omega Red
Environment
Trading Card Item 49204
Magneto
Cyclops
Environment
Trading Card

Item 49300
(X-Men II Pocket Comics)

Item 49301
W. X
Wolverine
W. X Guard
Environment
Trading Card Item 49302
Bishop
Apocalypse
Environment
Trading Card Item 49303
Juggernaut
Professor
Environment
Trading Card Item 49304
Mr. Sinister
Gambit
Environment
Trading Card
Item 47200
(Spider-man Pocket Comics)

Item 47201
Spider-man
Dr. Octopus
Environment
Trading Card Item 47202
Spider-man
Smythe
Environment
Trading Card Item 47203
Spider-man
Hobgoblin
Environment
Trading Card Item 47204
Spider-man
Venom
Environment
Trading Card
The protestant claims the Pocket Comic 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 (1994). Alternatively, the protestant claims the articles fall into subheading 9503.90.6000, Harmonized Tariff Schedule of the United States Annotated, (HTSUSA), the provision for "Other toys . . . and accessories thereof: Other: Other: Other toys (except models), not having a spring mechanism," with an applicable duty rate of 6.8 percent ad valorem (1994). Alternatively, the protestant claims all the figures possess readily apparent nonhuman features (e.g., fangs, claws, abnormally shaped skulls, etc.), and that all the merchandise should be classified in subheading 9503.49.00, 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," with an applicable duty rate of 6.8 percent ad valorem (1994).

You indicated that the presence of the trading card in the group prohibits classification of these articles as toys in sets, the rationale being that the articles do not have a common purpose. You considered the trading card lacking in play value in contrast to the environment and its figures. Finding that the trading card breaks the set, you classified the articles individually under the respective provisions: the figures 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 (1994); the environment in subheading 9503.90.6000, HTSUSA, dutiable at 6.8 percent ad valorem; and the trading card in subheading 4911.99.6000, HTSUSA, dutiable at 4 percent ad valorem.

ISSUES:

Whether the Pocket Comics articles fall more properly into the subheadings applicable to the individual items, or in subheading 9503.70.8000, HTSUSA, 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.

We must consider whether the assorted articles composing the Pocket Comics are more properly classified in the various headings provided for the individual items, or grouped together as toys put up in sets in heading 9503. Although the term "toy" is not specifically defined in the tariff, the ENs to chapter 95, HTSUSA, indicate that the chapter covers toys of all kinds whether designed for the amusement of children or adults. Thus, it has been Customs position that toys should be designed and used principally for amusement.

The ENs to heading 9503 indicate that certain toys, including toy arms, tools, gardening sets, tin soldiers, etc., are often put up in sets. The ENs to heading 9503 further suggest 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 note that, except for the trading card, each of this article's components individually is classified in chapter 95. 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)

We find that such is the case with the Pocket Comics. The packages contain different articles put up for sale principally for amusement, i.e., articles classifiable in different headings: the figures fall into either heading 9503, HTSUSA, or heading 9502, HTSUSA, the environment into heading 9503, HTSUSA, and the trading card into heading 4911, HTSUSA.

We note that these Pocket Comics resemble what would be commonly called miniature "doll houses." Each environment is constructed to create a sci-fi setting for play with the two miniature action figures supplied. The environments have various built-in and removable gadgets, accessories, apparatus, etc. Additionally, each Pocket Comics environment supplies a "trading card." However, we do not find that the presence of the trading card alone precludes classification of Pocket Comics as a set because the trading card here is included to inspire or facilitate imaginative play within the context of the given environment.

A given card depicts, on one side, at least one of the figures contained in a given package as well as the name of the particular environment. The same picture appears affixed to the top side of the given Pocket Comics environment. The reverse side of the trading card sets forth a brief synopsis of the historic relation of the two action figures contained therein. This synopsis creates a paradigm for imaginative play with the given environment. We note that each environment is molded to accommodate storage of the trading card on the bottom so that it may be carried for reference when playing. The cardholder allows either side of the card to show. In sum, the trading card, here, is not included as an extraneous or unrelated article furnished for separate amusement, i.e., collecting.

In HRL 950700, issued August 25, 1993, we stated that the application of the toy set provision is relatively straightforward when each item within a set individually is classified as a toy, as opposed to an assortment consisting entirely or partly of items which individually are classified elsewhere in the HTSUSA. In addition, we found no indication that toys put up in sets must meet a particular need or carry out a specific activity. Not all items are required to be used together at the same time, and no individual article should predominate over any other in the combination.

We are reinforced in this position by the EN to subheading 9503.70, noted supra. It states that for the purpose of the subheading, "[s]imple accessories or objects of minor importance intended to facilitate the use of the . . . [toys put up in sets] may also be included." Here, the trading card appears to fit the description of a simple accessory that facilitates the use of the Pocket Comics. Therefore, it would be included with the other toy components in subheading 9503.70.8000, HTSUSA.

We find that the complete article comprising these Pocket Comics is a collection of separately classifiable items which, when combined, are principally designed for amusement, and are put up in a form clearly indicating their use as toys. Accordingly, the Pocket Comics is classified in subheading 9503.70.8000, HTSUSA, as other toys put up in sets.

HOLDING:

All of the Pocket Comics as identified in this protest are properly classified in subheading 9503.70.8000, HTSUSA, the provision for "Other toys, put up in sets or outfits, and parts and accessories thereof: Other: Other," dutiable at 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

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