HQ 958039

March 8, 1996

CLA-2 RR:TC:FC 958039 RC

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.

3001-95-100098, filed February 3, 1995, concerning the

classification of toy action figures

Dear Sir:

This is a decision on a protest timely filed February 3,

1995, against your decision in the classification of numerous

entries made from August through September 1994, of toy action

figures.

FACTS:

The protestant claims that 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, Harmonized Tariff Schedule of the

United States Annotated (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). Alternatively, the protestant claims that retail

packages containing two or more figures 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(1994).

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 (1994). You

identified each doll or toy creature by name under the item

number in which the article is included, as indicated below.

Item 47100

9502.10.4000 9503.49.0020

Dr. Octopus\--Whipping Tentacles Smythe\--Double Power

Punch

Spider-man\--Web Shooter Venom\--Chomping Jaws

Spider-man\--Web Racer Carnage\--Snap-on Weapon

Hands

Hobgoblin\--Pumpkin Bomb Hurling Action

Item 44100

9503.49.0020

Maximum Carnage

Item 44300

Maximum Carnage Triple Threat

(Carnage, Venom, Spider-man sold together)

9502.10.4000 9503.49.0020

Spider-man Carnage

Venom

Item 44400

(44401&44402)

Maximum Carnage Battle Packs

(The various figures are put up for sale in pairs with Carnage)

9502.10.4000 9503.49.0020

Spider-man Carnage (with ax)

Venom

Blob

Item 47110

9502.10.4000 9503.49.0020

Kraven\--Hurling Action The Lizard\--Lashing Tail

Spider-man\--Parachute Web Alien Spider Slayer\--Twin Torso

Peter Parker\--Camera Accessory Vulture\--Spreading

Wing Action

Kingpin\--Grab and Smash Action

Item 47710

9502.10.4000 9503.49.0020

Spider-man\--Wall Hanging The Lizard

Dr. Octopus

Item 4900 I

9502.10.4000 9503.49.0020

Silver Samurai\--Metal Samurai Armor Beast\--Mutant Flipping

Power

Item 4900 J

9502.10.4000 9503.49.0020

Rogue\--Power Upper Cut Punch Ch\'od\--Double Arm Hurling

Action

Kylun\--Twin Striking Swords

Raza\--Swashbuckling Sword Action

Cameron Hodge Wolverine

Bonebreaker\--Mutant Attack Tank

Civilian Wolverine\--Retractable Claws

Item 49389

9502.10.4000

Senyaka

Item 4950 F

9502.10.4000 9503.49.0020

X-Treme\--Axe Attack Slayback\--Extending Bio-Mechanical Arms

Warpath H\--Smashing Power Punch

Cable V\--Deep Sea Combat Gear

Commcast\--Mutant Hunting Hovercraft

Item 49500

9502.10.4000

Cable

Kane

Shatterstar

Item 49605 I

9502.10.4000 9503.49.0020

Maverick Wolverine Tiger Stripe

Trevor Fitzroy

Item 49605 II

9502.10.4000

Silver Samurai

Robin Wolverine

SM Cyclops

Item 49608 WMI

9502.10.4000 9503.49.0020

Spider-man Web Shooter Beast

Item 49608 WMII

9502.10.4000 9503.49.0020

Spider-man Web Racer Night Crawler

Item 49608 WMIII

9502.10.4000

Juggernaut

Spider-man Parachute

Item 49608 WMIV

9502.10.4000

Peter Parker

Civilian Wolverine

Item 49720

9502.10.4000 9503.49.0020

Weapon X Wolverine Beast

Apocalypse

Item 49730

9502.10.4000

Wolverine

Omega Red

Magneto

Item 49528

9503.49.0020

Mojo

All are two-legged figures measuring approximately five

inches in height, except for the figures identified by item

numbers 47710, 49500, 49720, and 49730. The latter figures

measure approximately ten inches in height. All 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). Most figures appear to be very muscular. Many

figures are packaged with small toy accessories such as weapons

or tools. Some come with an official trading card that describes

an X-Men figure unrelated to the figure in the package. Item

numbers 44300, 44400, 49605 I, 49605 II, 49608 WMI, 49608 WMII,

49608 WMIII, and 49608 WMIV identify figures packaged in pairs or

more.

ISSUES:

1\) Whether the figures are properly classified in heading

9502, HTSUSA, as dolls representing only human beings, or in

heading 9503, HTSUSA, as other toys representing animals or

nonhuman creatures.

2\) Whether the figures packaged for retail sale in pairs or

more fall more properly into the subheadings applicable to

the individual items, or in subheading 9503.70.80, HTSUSA,

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 (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, HTSUSA, 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, HTSUSA, applies to \"other toys,\" i.e., all

toys not specifically provided for in the other headings of

Chapter 95. The ENs to heading 9503, HTSUSA, indicate that the

heading includes toys representing animals or nonhuman 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, HTSUSA. 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 nonhuman characteristics that are

immediately apparent to the casual observer. Where the nonhuman

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

nonhuman is, in actuality, such a feature. Most angels and

devils possess readily apparent nonhuman 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 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 nonhuman 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

nonhuman, 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 nonhuman.\"

Of first order, Headquarters has issued classification

rulings with respect to the following action figures and

considered each alone to be classifiable in subheading

9503.49.0020, HTSUSA, as a toy representing an animal or a

nonhuman creature:

Nightcrawler, HRL 957688 (October 11, 1995)

Apocalypse, HRL 957688 (October 11, 1995)

Spider-man, HRL 957603 (October 12, 1995)

Venom, HRL 957603 (October 12, 1995)

Carnage, HRL 958129 (February 27, 1996)

Maximum Carnage, HRL 958129 (February 28, 1996)

With casual observation, Customs notes that the Spider-man

(Multi-jointed) figure, cited to above, has the same essential

identifying features as the Spider-man Web Shooter, Web Racer,

Parachute, and Wall Hanging figures, i.e., an insect. Therefore,

we find that all of these Spider-man figures fall into subheading

9503.49.0020, HTSUSA.

Additionally, Headquarters has issued classification rulings

with respect to the following action figures and considered each

alone to be classifiable in subheading 9502.10.4000, HTSUSA, (now

9502.10.0020) as dolls representing only human beings:

Wolverine, HRL 957688 (October 11, 1995)

Weapon X Wolverine, HRL 957688 (October 11, 1995)

Wolverine Tiger Stripe, HRL 957603 (October 12, 1995)

Cable, HRL 957636 and 957688 (October 11, 1995)

Cable H, HRL 957603 (October 12, 1995)

Cable III, HRL 957603 (October 12, 1995)

Cyclops, HRL 957603 (October 12, 1995)

Dr. Octopus, HRL 957603 (October 12, 1995)

Kane, HRL 957603 (October 12, 1995)

Omega Red, HRL 957603 (October 12, 1995)

Magneto, HRL 957636 (October 11, 1995)

Shatterstar, HRL 957636 (October 11, 1995)

Trevor Fitzroy, HRL 957688 (October 11, 1995)

Juggernaut, HRL 957688 (October 11, 1995)

Kraven, HRL 958244 (March 4, 1996)

Hobgoblin, HRL 958129 (February 27, 1996)

Vulture, HRL 958244 (March 4, 1996)

With casual inspection, Customs notes that the Wolverine,

the Weapon X Wolverine, and the Tiger Stripe Wolverine figures,

cited to above, have the same essential identifying features as

the Robin Wolverine, the Civilian Wolverine, and the Hodge

Cameron Wolverine figures, i.e., a human being with prosthetic

hands. Therefore, we find that all of these Wolverine figures

likewise fall into subheading 9502.10.4000, HTSUSA.

Furthermore, without close examination, Customs notes that

the Cable, the Cable II, and the Cable III figures, cited to

above, have the same essential identifying features as the Cable

V figure, i.e., a man with a prosthetic arm. Therefore, we find

that the Cable V figure likewise falls into subheading

9502.10.4000, HTSUSA.

Again, with casual inspection, Customs notes that the

Cyclops figure, cited to above, has the same essential

identifying features as the SM Cyclops figure, i.e., a man with a

visor. Therefore, we find that the SM Cyclops likewise falls

into subheading 9502.10.4000, HTSUSA.

Looking to the remaining 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, prosthetics (lifelike or mechanical), intricate headgear,

hoods, 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 nonhuman 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, HTSUSA, do not manifest nonhuman

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 samples or photos of the figures

identified as Lizard, Smythe, Alien Spider Slayer, Ch\'od, and

Mojo, all classified as dolls, now provides a basis upon which to

classify these items in subheading 9503.49.0020, HTSUSA, as toys

representing animals or nonhuman creatures.

The Lizard figure looks like a lizard, a reptile. Albeit

the figure wears human clothing, it is immediately apparent that

all of its features are nonhuman. The arm-length horn-like

appendages protruding from the Smythe figure\'s back and the

hatchet-like appendages protruding from the figure\'s elbows and

calves are features which immediately identify Smythe as another

toy representing an animal or a nonhuman creature. The Alien

Spider Slayer figure readily appears nonhuman. It has red eyes

with no irises, two-clawed feet, three-clawed hands, and a

reptilian-like tail that extends to the ground and curls upward

behind the figure. It has lobster-like side claws and a double

fanged animal-like mouth. The Ch\'od figure readily appears

nonhuman. It has red eyes with no irises, two-clawed feet, and

four-clawed hands. It has a salamander-like face. The Mojo

figure\'s nonhuman characteristics include a rather small head

with no neck but a very large double chin, a huge belly, and long

skinny arms attached to which are long skinny four-digit hands.

This figure rests on a spider-like machine with a metallic back

support and a tail-like headgear that appears to grow from the

figure\'s head. 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 nonhuman creatures.

With regard to classification of the articles packaged to

contain two or more figures (i.e., Item Numbers 44300, 44400,

49605 I, 49605 II, 49608 I, 49608 II, 49608 III, and 49608 IV)

whether they 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 two or more items is composed of at

least a pair of figures put up in the same packing principally

for amusement, only some of the items are composed of articles

which differ from one another, i.e., one figure is classifiable

as a doll in heading 9502, HTSUSA, and the other(s) as a toy

animal/creature in heading 9503, HTSUSA. Where the complete

article comprising these figures is a collection of separately

classifiable items, principally designed for amusement, put up in

a form clearly indicating their use as toys, the article is

classified in subheading 9503.70.8000, HTSUSA, as other toys put

up in sets. Such is the case with the Item 44400 containing

Carnage (a creature in heading 9503, HTSUSA) and Blob (a doll in

heading 9502, HTSUSA), with Item 49608 WMI containing Spider-man

Web Shooter (a creature in heading 9503, HTSUSA) and Beast (a

doll in heading 9502, HTSUSA), and with Item 49608 WMIII

containing Spider-man Parachute (a creature in heading 9503,

HTSUSA) and Juggernaut (a doll in heading 9502, HTSUSA).

Since each of the other groups of figures is composed either

exclusively of dolls or exclusively of 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 action 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 these action figures are classified with

(in the same subheading as) the accompanying doll or toy

creature.

With respect to the classification of the trading cards

included with many of the figures, we note that these trading

cards are only included in packages containing one action figure.

Although the trading cards picture and describe the powers of

individual action figures, each card has no connection to the

figure with which it is packaged. The trading cards must

therefore be separately classified. Heading 4911, HTSUSA,

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.

HOLDING:

Item 47100

9502.10.4000 9503.49.0020

Dr. Octopus\--Whipping Tentacles Smythe\--Double Power

Punch

Hobgoblin\--Pumpkin Bomb Hurling Action Venom\--Chomping Jaws

Carnage\--Snap-on Weapon Hands

Spider-man\--Web Shooter

Spider-man\--Web Racer

Item 44100

9503.49.0020

Maximum Carnage

Item 44300

9503.49.0020

Maximum Carnage Triple Threat

(Carnage, Venom, and Spider-man sold

together)

Item 44400 (44401 &44402)

9503.49.0020

Maximum Carnage Battle Packs

(Carnage and Spider-man sold

as pair)

(Carnage and Venom sold as

pair)

Item 47110

9502.10.4000 9503.49.0020

Kraven\--Hurling Action The Lizard\--Lashing Tail

Peter Parker\--Camera Accessory Alien Spider Slayer\--Twin Torso

Kingpin\--Grab and Smash Action Spider-man\--Parachute Web

Vulture\--Spreading Wing Action

Item 47710

9502.10.4000 9503.49.0020

Dr. Octopus The Lizard

Spider-man (Wall Hanging)

Item 4900 I

9502.10.4000

Silver Samurai\--Metal Samurai Armor

Beast\--Mutant Flipping Power

Item 4900 J

9502.10.4000 9503.49.0020

Rogue\--Power Upper Cut Punch Ch\'od\--Double Arm Hurling

Action

Kylun\--Twin Striking Swords

Raza\--Swashbuckling Sword Action

Cameron Hodge Wolverine

Bonebreaker\--Mutant Attack Tank

Civilian Wolverine\--Retractable Claws

Item 49389

9502.10.4000

Senyaka

Item 4950 F

9502.10.4000

X-Treme\--Axe Attack

Warpath II\--Smashing Power Punch

Cable V\--Deep Sea Combat Gear

Commcast\--Mutant Hunting Hovercraft

Slayback\--Extending Bio-Mechanical Arms

Item 49500

9502.10.4000

Cable

Kane

Shatterstar

Item 49528

9503.49.0020

Mojo

Item 49605 I

9502.10.4000

Maverick

Trevor Fitzroy

Wolverine Tiger Stripe

Item 49605 II

9502.10.4000

Silver Samurai

Robin Wolverine

SM Cyclops

Item 49608 WMI

9502.10.4000 9503.49.0020

Beast Spider-man Web Shooter

Item 49608 WM II

9503.49.0020

Spider-man Web Racer

Night Crawler

Item 49608 WM III

9502.10.4000 9503.49.0020

Juggernaut Spider-man Parachute

Item 49608 WM IV

9502.10.4000

Peter Parker

Civilian Wolverine

Item 49720

9502.10.4000 9503.49.0020

Weapon X Wolverine Apocalypse

Beast

Item 49730

9502.10.4000

Wolverine

Omega Red

Magneto

The action figures listed above are classified as

designated. Those figures designated as falling into 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,\" are dutiable

at 12 percent ad valorem (1994).

Those figures designated as falling 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,\" are dutiable at 6.8 percent ad valorem (1994).

The articles composed of paired figures identified as

Carnage/Blob, Spider-man Web Shooter/Beast, and Spider-man

Parachute/Juggernaut 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 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