HQ 958244

March 4, 1996

CLA-2 RR:TC:FC 958244 RC

CATEGORY: Classification

TARIFF NO.: 9502.10.4000; 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.

3001-95-100346, filed

May 19, 1995, concerning the classification of various toy

creatures and action figures

Dear Sir:

This is a decision on a protest timely filed May 19, 1995,

against your decision in the classification under the Harmonized

Tariff Schedule of the United States Annotated (HUSUSA) of

articles entered from October through December 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 45100

Black Bolt

Moleman

Terrax

Dr. Doom

Mr. Fantastic

Silver Surfer

The Thing

Item 47720

Carnage

Kraven

Vulture

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. Some
figures appear muscular. Some figures are

packaged with small toy accessories such as wings, weapons or tools.

Each figure is packaged and sold separately, except for Moleman. The
latter is packaged and sold with

another human-like figure.

ISSUE:

1\) 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.

2\) Whether the toy figures retail packaged in pairs are more 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 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 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. Customs has ruled that the Dr. Doom
figure falls into heading 9503, HTSUS. See,

HRL 957603 (October 12, 1995). With respect to the exceptions referenced
above, \"The Thing\" and \"Carnage,\" both

were

classified as dolls upon entry, but we find the features of these
figures provide a basis upon which to classify these items

in heading 9503, HTSUS, as toys representing animals or non-human
creatures.

\"The Thing\" and \"Carnage,\" figures appear to have insect- or
creature-like features. Close examination is not

required to discover that they both lack human-like features such as a
mouth, a nose, ears, hair, skin, etc. \"Carnage,\"

for example, has a mouth that look more dog-like than human. \"The
Thing\" has flesh more like a robot or rhinoceros

than human-like. We find the casual observer would immediately see that
the articles do not appear to represent

humans, but rather non-human creatures. As such, the figures fall into
heading 9503, HTSUS, a position supported by

the ENs.

With regard to whether articles packaged to contain two figures (i.e.,
the \"Moleman\" pair of figures) 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 \"Moleman\" is composed of a pair of figures put up in the same
packing principally for amusement, it is

not composed of articles which differ from one another, i.e., both
figures are dolls classifiable in heading 9502, HTSUS.

Since the \"Moleman\" article is composed of two dolls, each falling
into heading 9502, HTSUS, it is not

classifiable as a set in subheading 9503.70.8000, HTSUSA, nor as a set
pursuant to GRI 3. Those classifications are

for goods, prima facie, classifiable under two or more headings. The
moleman figures are separately classifiable in the

subheadings applicable to the individual items.

HOLDING:

The figures identified as \"The Thing,\" \"Carnage,\" and \"Dr. Doom,\"
fall into 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).

The figures identified as \"Black Bolt,\" \"Moleman,\" \"Terrax,\" \"Mr.
Fantastic,\" \"Silver Surfer,\" \"Kraven,\" and

\"Vulture,\" fall into 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 (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 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