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

Appeals Division