HQ 957603

October 12, 1995

CLA-2 RR:TC:FC 957603 GGD

CATEGORY: Classification

TARIFF NO.: 9502.10.4000; 9503.49.0010; 9503.49.0020;

9503.70.8000

Port Director of Customs

1000 Second Avenue, Suite 2200

Seattle, Washington 98104-1049

RE: Decisions on Applications for Further Review of Protest Nos.

3001-94-100409, filed June 23, 1994; 3001-94-100499, filed

August 9, 1994; 3001-94-100524, filed August 25, 1994; and

3001-94-100644, filed October 27, 1994; concerning the

classification of X-Men and other Marvel toy creatures and

action figures

Dear Sir:

These are decisions on four protests timely filed in August and October,
1994, against your decisions in the classification of numerous entries
made from November 1993 through April 1994, of X-Men and other Marvel
action figures and toy creatures.

FACTS:

In the first protest, no. 3001-94-100409, the protestant claims that all
the figures possess readily apparent non-human features (e.g., fangs,
claws, abnormally shaped skulls, etc.), and that all the merchandise
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.\"

You classified each figure 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

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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 doll or toy
creature by name under the item no. in which the article is included, as
indicated below.

Item 4810E

9502.10.4000 9503.49.0020

Captain America Venom

Dr. Octopus

Spiderman (Multi-Jointed)

The Punisher

Incredible Hulk

Dr. Doom

Item 4900G

9502.10.4000 9503.49.0020

Juggernaut Archangel

Cyclops Apocalypse

Magneto

Wolverine

Item 4900C

9502.10.4000 9503.49.0020

Wolverine II Sauron

Weapon X Wolverine

Banshee

Gambit

Magneto

Item 4900E

9502.10.4000 9503.49.0020

Wolverine Tusk

Bishop Apocalypse

Strong Guy

Omega Red

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Item 4950C

9502.10.4000

Cable II (Space)

Cannonball

Kane

Crule

Cable III (Rocket Firing)

Grizzly

Item 49740

9502.10.4000

Wolverine

Cyclops

Sabretooth

Item 49601KB

9502.10.4000

Wolverine V

In the second protest, no. 3001-94-100499, the protestant again claims
that all the figures should be classified in subheading 9503.49.0020,
HTSUSA. You classified each figure in either subheading 9502.10.4000,
HTSUSA, or subheading 9503.49.0020, HTSUSA, again identifying each doll
or toy creature by name under the item number in which the article is
included, as indicated below.

Item 49603WM

9502.10.4000 9503.49.0020

Professor X Ahab

Cyclops

Mr. Sinister

Wolverine T.S.

Sabretooth II

Item 4900F

9502.10.4000 9503.49.0020

Professor X Ahab

Cyclops Brood

Longshot

Sabretooth

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Item 4950C

9502.10.4000

Cable II (Space)

Cannonball

Kane

Crule

Cable III (Rocket Firing)

Grizzly

Item 49602WM

9502.10.4000 9503.49.0020

Strong Guy Tusk

Wolverine Apocalypse

Omega Red

Bishop

In protest no. 3001-94-100524, the protestant claims that all the
figures should be classified in subheading 9503.49.0020, HTSUSA, and
that alternatively, retail packages containing two or

more figures (i.e., item no. 49210 - \"X-Men Steel Mutants,\" having two
die-cast metal figures per package) should be classified in subheading
9503.70.80 (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 doll figure (whether of plastics or die-cast metal)
in subheading 9502.10.4000, HTSUSA, and each of the toy creatures in
either subheading 9503.49.0020, HTSUSA (if of plastics), or
9503.49.0010, HTSUSA (if of die-cast metal), 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,\" with an
applicable duty rate of 6.8 percent ad valorem. You again identified
each doll or toy creature by name under the item number in which the
article is included, as indicated below.

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Item 49210 (X-Men Steel Mutants)

9502.10.4000 9503.49.0010

Wolverine Archangel

Cyclops Apocalypse

Juggernaut

Wolverine Spy

Omega Red

Sabretooth

Item 4900F

9502.10.4000 9503.49.0020

Professor X Ahab

Cyclops Brood

Longshot

Sabretooth

Item 49602WM

9502.10.4000 9503.49.0020

Strong Guy Tusk

Wolverine Apocalypse

Omega Red

Bishop

Item 4900E

9502.10.4000 9503.49.0020

Wolverine Tusk

Bishop Apocalypse

Strong Guy

Omega Red

In protest no. 3001-94-100644, the protestant contends that all the
figures should be classified in subheading 9503.49.0020, HTSUSA. You
classified each figure in either subheading 9502.10.4000, HTSUSA, or
subheading 9503.49.0020, HTSUSA, again identifying each doll or toy
creature by name under the item number in which the article is included,
as indicated below.

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Item 4900K

9502.10.4000 9503.49.0020

Magneto Iceman

Storm Sauron

Mr. Sinister Night Crawler

Weapon X Wolverine

Item 4900H

9502.10.4000 9503.49.0020

Wolverine II Archangel

Cyclops

Juggernaut

Gambit

Colossus

Item 4900F

9502.10.4000 9503.49.0020

Professor X Ahab

Cyclops Brood

Longshot

Sabretooth

Item 49710

9502.10.4000

Bishop

Mr. Sinister

Gambit

All two-legged figures (with the exception of the X-Men Steel Mutants)
measure approximately five inches in height. The Steel Mutant figures
measure approximately 2-1/2 inches in height. All two-legged figures are
capable of standing erect. All figures have movable heads and
appendages, both upper and lower (e.g., arms, legs, wings, tails, and/or
weapons, etc.). Most figures appear to be very muscular. Some figures
have several lower appendages, or appear to be seated in or on various
types of vehicles or crafts (in which cases lower appendages are

not visible). Those figures generally measure 3-1/2 inches in height.
Many figures are packaged with small toy accessories

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such as weapons or tools, and/or with an \"Official Marvel Universe
Trading Card\" that describes an X-Men figure unrelated to the figure in
the package. The Steel Mutants are packaged in pairs and marketed as
\"Duelling Combos \[composed of an evil mutant and a mutant hero\] For
The Ultimate In Heavy Duty Action.\"

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 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

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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

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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.\"

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, capes
which bear resemblance to wings, weaponry that is 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 a few 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 numerous samples of the
figures identified as \"Spiderman (Multi-Jointed),\" \"Sabretooth,\" and
\"Dr. Doom,\" 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.

Non-human features immediately apparent on the multi-jointed Spiderman
are its two triangular-shaped, pink eyes. The eyes are outlined in black
and appear to form the central portion of a web

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(which also covers much of the figure\'s upper torso, arms, and lower
legs). The figure\'s head is extremely smooth and, other than the eyes,
is devoid of features. Close examination (e.g., the removal of a helmet,
hood, or other headgear) is not required to discover that the creature
has no mouth, nose, ears, hair, etc.

The appendages and features which immediately identify Sabretooth as an
other toy representing an animal or non-human creature include a blond,
fur-like hump across the upper back and tops of the shoulders (which
matches the appearance of fur on the head, eyebrows, and cheeks);
partially visible fangs; fingers that are long, sharp, and gnarled; and
spiked elbows.

Dr. Doom\'s non-human characteristics include the appearance of metal
upper and lower extremities and a metallic head. The creature\'s face is
crisscrossed by rows of rivet marks. It has reinforced rectangles for
eye openings, and an open mouth surrounded by rivet marks and blocked by
bars, one horizontal and two vertical. Although these figures were
classified in subheading 9502.10.4000, HTSUSA, we find that it would be
immediately apparent to the casual observer that the articles do not
represent humans, but rather animals or non-human creatures.

With regard to whether articles packaged to contain two figures (i.e.,
the four pairs of \"X-Men Steel Mutants\" in item no. 49210) 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 \"Steel Mutants\" 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

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which differ from one another, i.e., the pair consisting of Wolverine (a
doll classifiable in heading 9502, HTSUS) and Sabretooth (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 each of the other three \"Steel Mutants\" articles is composed of
either two dolls or two toy animals/creatures, they are not classifiable
in subheading 9503.70.8000, HTSUSA, nor as sets pursuant to GRI 3, since
that rule requires that goods be, prima facie, classifiable under two or
more headings. They are separately classifiable in the subheadings
applicable to the individual items.

In considering the classification of the toy weapons and equipment that
accompany many of the X-Men figures, we note that in HRL 957196, issued
February 17, 1995, this office classified certain retail packages, each
of which contained at least two

\"skeleton action figures\" and their accessories. The accessories
included in each package were one spring-loaded accessory (such

as a bazooka, cannon, or mortar) and at least two small toys fitted for
the figures\' hands (such as pistols, rifles, swords, etc.). We found
that the toy creatures and their accessory toys were both provided for
in subheading 9503.49.0020, HTSUSA. Consistent with our determination in
HRL 957196, the accessory toys and equipment included in many of the
retail packages of X-Men figures are classified with (in the same
subheading as) the doll or toy creature that the toys accompany.

With respect to the classification of the \"Official Marvel Universe
Trading Card\" included with many of the figures, we note that, although
the trading cards picture and describe the powers of individual X-Men
figures, each card has no connection to the figure with which it is
packaged. The trading cards must therefore be separately classified.
Heading 4911, HTSUS, applies to \"Other printed matter, including
printed pictures and photographs.\" The ENs to heading 4911 indicate
that among other items, the heading includes advertising matter
(including posters) and anatomical instructional charts and diagrams.
The trading cards are classified in subheading 4911.99.6000, HTSUSA.

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HOLDING:

Protest No. 3001-94-100409

Item 4810E

The figures identified as Captain America, Dr. Octopus, The Punisher,
and Incredible Hulk are classified in subheading 9502.10.4000, 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.\" The applicable rate of duty is 12 percent ad valorem.

The figures identified as Spiderman (Multi-Jointed), Dr. Doom, 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.

Item 4900G

The figures identified as Juggernaut, Cyclops, Magneto

and Wolverine are classified in subheading 9502.10.4000, HTSUSA.

The figures identified as Archangel and Apocalypse are classified in
subheading 9503.49.0020, HTSUSA.

Item 4900C

The figures identified as Wolverine II, Weapon X Wolverine, Banshee,
Gambit, and Magneto are classified in subheading 9502.10.4000, HTSUSA.

The figure identified as Sauron is classified in subheading
9503.49.0020, HTSUSA.

Item 4900E

The figures identified as Wolverine, Bishop, Strong Guy, and Omega Red
are classified in subheading 9502.10.4000, HTSUSA.

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(Holding - Protest No. 3001-94-100409 Continued)

The figures identified as Tusk and Apocalypse are classified in
subheading 9503.49.0020, HTSUSA.

Item 4950C

The figures identified as Cable II (Space), Cannonball, Kane, Crule,
Cable III (Rocket Firing), and Grizzly are classified in subheading
9502.10.4000, HTSUSA.

Item 49740

The figures identified as Wolverine and Cyclops are classified in
subheading 9502.10.4000, HTSUSA.

The figure identified as Sabretooth is classified in subheading
9503.49.0020, HTSUSA.

Item 49601KB

The figure identified as Wolverine V is classified in subheading
9502.10.4000, HTSUSA.

Protest No. 3001-94-100499

Item 49603WM

The figures identified as Professor X, Cyclops, Mr. Sinister, and
Wolverine T.S. are properly classified in subheading 9502.10.4000,
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.\" The applicable rate of duty is 12 percent ad
valorem.

The figures identified as Sabretooth II and Ahab are properly 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.

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(Holding - Protest No. 3001-94-100499 Continued)

Item 4900F

The figures identified as Professor X, Cyclops, and Longshot are
properly classified in subheading 9502.10.4000, HTSUSA.

The figures identified as Ahab, Brood, and Sabretooth are properly
classified in subheading 9503.49.0020, HTSUSA.

Item 4950C

The figures identified as Cable II (Space), Cannonball, Kane, Crule,
Cable III (Rocket Firing), and Grizzly are classified in subheading
9502.10.4000, HTSUSA.

Item 49602WM

The figures identified as Strong Guy, Wolverine, Omega Red, and Bishop
are properly classified in subheading 9502.10.4000, HTSUSA.

The figures identified as Tusk and Apocalypse are properly classified in
subheading 9503.49.0020, HTSUSA.

Protest No. 3001-94-100524

Item 49210 (X-Men Steel Mutants)

The article composed of the figures identified as Wolverine and
Sabretooth are properly classified in 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.

The figures identified as Cyclops, Juggernaut, Wolverine Spy, and Omega
Red are properly classified in subheading 9502.10.4000, HTSUSA, the
provision for \"Dolls representing only human beings and parts and
accessories

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(Holding - Protest No. 3001-94-100524 Continued)

thereof: Dolls, whether or not dressed: Other: Not over 33 cm in
height.\" The applicable rate of duty is 12 percent ad valorem.

The figures identified as Archangel and Apocalypse are properly
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.\" The
applicable rate of duty is 6.8 percent ad valorem.

Item 4900F

The figures identified as Professor X, Cyclops, and Longshot are
properly classified in subheading 9502.10.4000, HTSUSA.

The figures identified as Ahab, Brood, and Sabretooth are properly
classified in subheading 9503.49.0020, HTSUSA.

Item 49602WM

The figures identified as Strong Guy, Wolverine, Omega Red, and Bishop
are properly classified in subheading 9502.10.4000, HTSUSA.

The figures identified as Tusk and Apocalypse are properly classified in
subheading 9503.49.0020, HTSUSA.

Item 4900E

The figures identified as Wolverine, Bishop, Strong Guy, and Omega Red
are classified in subheading 9502.10.4000, HTSUSA.

The figures identified as Tusk and Apocalypse are properly classified in
subheading 9503.49.0020, HTSUSA.

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Protest No. 3001-94-100644

Item 4900K

The figures identified as Magneto, Storm, Mr. Sinister, and Weapon X
Wolverine are properly classified in subheading 9502.10.4000, 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.\" The applicable rate of duty is 12 percent ad valorem.

The figures identified as Iceman, Sauron, and Night Crawler are properly
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.

Item 4900H

The figures identified as Wolverine II, Cyclops, Juggernaut, Gambit, and
Colossus are properly classified in subheading 9502.10.4000, HTSUSA.

The figure identified as Archangel is properly classified in subheading
9503.49.0020, HTSUSA.

Item 4900F

The figures identified as Professor X, Cyclops, and Longshot are
properly classified in subheading 9502.10.4000, HTSUSA.

The figures identified as Ahab, Brood, and Sabretooth are properly
classified in subheading 9503.49.0020, HTSUSA.

Item 49710

The figures identified as Bishop, Mr. Sinister, and Gambit are properly
classified in subheading 9502.10.4000, HTSUSA.

The \"Official Marvel Universe Trading Card\" included with many of the
figures in all four protests above, is properly classified in subheading
4911.99.6000, HTSUSA, the provision for

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\"Other printed matter, including printed pictures and photographs:
Other: Other: Other: Printed on paper in whole or in part by a
lithographic process.\" The applicable rate of duty is 0.4 percent ad
valorem.

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

Appeals Division