HQ 957636

October 11, 1995

CLA-2 RR:TC:FC 957636 GGD

CATEGORY: Classification

TARIFF NO.: 9502.10.4000; 9503.49.0020; 9503.70.8000;

4911.99.6000

Port Director of Customs

1000 Second Avenue, Suite 2200

Seattle, Washington 98104-1049

RE: Decision on Application for Further Review of Protest No.

3001-94-100747, filed December 19, 1994, concerning the

classification of X-Men, X-Men Projectors, and other Marvel

toy creatures and action figures

Dear Sir:

This is a decision on a protest timely filed in December 1994, against
your decision in the classification of numerous entries made from May
1994 through July 1994, of X-Men and other Marvel action figures and toy
creatures.

FACTS:

Most X-Men action figures (with the exception of the Projectors, Steel
Mutants, and figures with absent or multiple appendages) measure
approximately five inches in height. The approximate heights of the
Projectors and Steel Mutants are 7 inches and 2-1/2 inches,
respectively. Figures with multiple appendages and those that appear to
be seated in or on various types of vehicles or crafts, measure
approximately 3-1/2 inches in height. All figures (except the die-cast
metal \"Steel Mutants\") are composed essentially of plastic. Most
figures (including Projectors, Steel Mutants, and those in Mutant Hall
of Fame) have two legs, are capable of standing erect, and have movable
heads and upper and lower appendages (e.g., arms, legs, wings, tails,
and/or weapons, etc.). Most figures appear to be very muscular. Many
figures are packaged with small toy

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accessories 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.\" The Mutant Hall of Fame
is packaged in a group of 10 figures (evil mutants and mutant heroes),
with each figure\'s feet permanently attached to 1 collector display
stand.

Each X-Men Projector article is composed of a figure, a projector within
the figure\'s chest cavity, and 3 film disks. The projector component is
composed of a small light bulb (powered by 2 \"AAA\" batteries, not
included) behind a small lens, through which action images are projected
onto a flat surface from 1 of 3 different film disks included in each
package.

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.\"

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

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Item 4810F

9502.10.4000

Invisible Woman

Daredevil

U.S. Agent

Punisher

Spiderman (Multi-Jointed)

Item 4900F

9502.10.4000 9503.49.0020

Professor X Ahab

Cyclops Brood

Longshot

Sabretooth

Item 4900G

9502.10.4000 9503.49.0020

Juggernaut Archangel

Cyclops Apocalypse

Magneto

Wolverine

Item 4900H

9502.10.4000 9503.49.0020

Wolverine II Archangel

Cyclops

Juggernaut

Gambit

Colossus

Item 4900K

9502.10.4000 9503.49.0020

Magneto Iceman

Storm Sauron

Mr. Sinister Night Crawler

Weapon X Wolverine

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Item 4950E

9502.10.4000 9503.49.0020

Pyro Quark

Shatterstar

Cable

Rictor

Sunspot

Item 49110 (X-Men Projectors)

9502.10.4000 9503.49.0020

Wolverine Apocalypse

Cyclops

Magneto

Sabretooth

Item 49220 (X-Men Steel Mutants)

9502.10.4000

Cable

Stryfe

Professor X

Magneto

Gambit

Bishop

Cyclops

Mr. Sinister

Item 49710

9502.10.4000

Bishop

Mr. Sinister

Gambit

Items 49740 and 49740J

9502.10.4000

Wolverine

Cyclops

Sabretooth

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Item 49800

9502.10.4000 9503.49.0020

Cyclops Iceman

Professor X Archangel

Wolverine Sauron

Juggernaut Apocalypse

Magneto

Sabretooth

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 X-Men \"Steel Mutants\" and \"Mutant
Hall of Fame\" 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.

3\) Whether the trading cards, toy weapons and toy tools are properly
classified in the subheadings applicable to the individual items, or as
accessories of the articles with which

they are included.

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the General
Rules of Interpretation (GRI). 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 GRI may
then be applied. The Explanatory Notes (EN) 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 GRI.

Heading 9502, HTSUS, provides for \"Dolls representing only human beings
and parts and accessories thereof.\" The EN 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.

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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

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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, 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 some 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)\" and \"Sabretooth,\"
both 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 (which also covers much
of the figure\'s upper torso, arms, and lower legs). The figure\'s head
is extremely smooth and, other

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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. 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.

In considering whether the \"Steel Mutants\" and the \"Mutant Hall of
Fame\" are 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)

The various pairs of \"X-Men Steel Mutants\" do not differ from one
another. Each figure is a doll, the same type of article as the other
item in the package. Therefore, even though the items are principally
for amusement, they are classified in heading 9502, HTSUS, as dolls -
not as other toys, put up in sets, and not as sets pursuant to GRI 3,
which requires that goods be, prima facie, classifiable under two or
more headings.

On the other hand, the figures which make up the \"Mutant Hall of Fame\"
are different types of articles (i.e., both dolls and toys representing
animals or non-human creatures). Although

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the manual play value of the figures is diminished by their permanent
attachment to a collector\'s display stand, their collective appearance
generates the same type of emotional reaction (i.e., amusement) one
would derive from playing with the figures. In pertinent part, the
American College Dictionary (1970), defines \"amusement\" as \"1. state
of being amused; enjoyment. 2. that which amuses; pastime;
entertainment.\" The evil mutants and mutant heroes that compose the
\"Mutant Hall of Fame\" are a collection of separately classifiable
items, principally designed for amusement, put up in a form which
clearly indicates their use as toys. The article, including the
collector\'s stand intended to facilitate the use of the figures, is
classified (in 1994) in subheading 9503.70.8000, HTSUSA.

We consider each X-Men Projector to be a composite article (consisting
of a figure and a projector) with accessories (consisting of three film
disks). Each article\'s essential character is imparted by the doll or
toy animal/creature component.

With regard to 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:

Item 4810F

The figures identified as Invisible Woman, Daredevil, U.S. Agent, and
Punisher are properly classified (in 1994) 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 figure identified as Spiderman (Multi-Jointed) is 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 (in 1994) is 6.8 percent ad valorem.

Item 4900F

The figures identified as Professor X, Cyclops, and Longshot are
properly classified (in 1994) in subheading 9502.10.4000, HTSUSA.

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

Item 4900G

The figures identified as Juggernaut, Cyclops, Magneto

and Wolverine are properly classified (in 1994) in subheading
9502.10.4000, HTSUSA.

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

Item 4900H

The figures identified as Wolverine II, Cyclops, Juggernaut, Gambit, and
Colossus are properly classified (in 1994) in subheading 9502.10.4000,
HTSUSA.

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

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Item 4900K

The figures identified as Magneto, Storm, Mr. Sinister, and Weapon X
Wolverine are properly classified (in 1994) in subheading 9502.10.4000,
HTSUSA.

The figures identified as Iceman, Sauron, and Night Crawler are properly
classified in subheading 9503.49.0020, HTSUSA.

Item 4950E

The figures identified as Pyro, Shatterstar, Cable, Rictor, and Sunspot
are properly classified (in 1994) in subheading 9502.10.4000, HTSUSA.

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

Item 49110 (X-Men Projectors)

The figures identified as Wolverine, Cyclops, and Magneto are properly
classified (in 1994) in subheading 9502.10.4000, HTSUSA.

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

Item 49220 (X-Men Steel Mutants)

The figures identified as Cable, Stryfe, Professor X, Magneto, Gambit,
Bishop, Cyclops, and Mr. Sinister are properly classified (in 1994) in
subheading 9502.10.4000, HTSUSA.

Item 49710

The figures identified as Bishop, Mr. Sinister, and Gambit are properly
classified (in 1994) in subheading 9502.10.4000, HTSUSA.

Items 49740 and 49740J

The figures identified as Wolverine and Cyclops are properly classified
(in 1994) in subheading 9502.10.4000, HTSUSA.

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

Item 49800

The article identified as the Mutant Hall of Fame, composed of a
collector\'s display stand and 10 figures identified as Iceman, Cyclops,
Professor X, Wolverine, Archangel, Juggernaut, Sabretooth, Sauron,
Magneto, and Apocolypse (sic.), are properly classified (in 1994) 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 \"Official Marvel Universe Trading Card\" included with many of the
figures, is properly classified in subheading 4911.99.6000, HTSUSA, the
provision for \"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 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