HQ 957688

October 11, 1995

CLA-2 RR:TC:FC 957688 GGD

CATEGORY: Classification

TARIFF NO.: 9502.10.4000; 9503.49.0020; 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.

3001-94-100755, filed December 27, 1994, concerning the

classification of X-Men toy creatures and action figures, X- Men
Projector figures, and \"Jumpsie\" doll sets

Dear Sir:

This is a decision on a protest timely filed in December 1994, against
your decision in the classification of two entries made in July 1994, of
X-Men action figures and toy creatures, X-Men Projectors, and
\"Jumpsie\" doll sets.

FACTS:

All X-Men action figures (with the exception of the Projectors and Steel
Mutants) measure approximately five inches in height. The approximate
heights of the Projectors and Steel Mutants are 7 inches and 2-1/2
inches, respectively. All figures (except the die-cast metal \"Steel
Mutants\") are composed essentially of plastic. All figures 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 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.\"

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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 \"Jumpsie\" doll set, identified by item nos. 33200 or 33201, is
composed of a doll (not stuffed), two small pom-poms (for the doll), a
small styling comb (for the doll), and a toy trampoline. Assembly of the
toy trampoline involves snapping together a round plastic frame, and
attaching (by 16 rubber bands) a plastic-coated textile mat measuring
approximately 10-1/2 inches in diameter. The doll measures approximately
10-1/2 inches in height and has a battery compartment for 2 \"AA\"
batteries (not included). When placed on the toy trampoline and switched
on, the doll appears to jump on its own. When imported, the retail
package is suitable for direct sale without repacking.

The protestant claims that all the X-Men figures possess readily
apparent non-human features (e.g., fangs, claws, abnormally shaped
skulls, etc.), and that all individual 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.

Alternatively, the protestant asserts that retail packages containing
two or more figures (i.e., Steel Mutants) and the \"Jumpsie\" doll set,
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.

In the alternative with respect to the \"Jumpsie\" set, protestant
maintains that neither the doll nor the trampoline provides the article
with its essential character, and that pursuant to General Rule of
Interpretation (GRI) 3(b) (probably means 3(c)), the set is properly
classified in subheading 9503.80.40, HTSUS, because that provision
occurs last in numerical order (among those which equally merit
consideration). The protestant also contends that any toy weapons,
tools, etc., that are included with certain figures, should be
separately classified in subheading 9503.90.70, HTSUS.

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You classified all the merchandise (including accessories, if any) in
either subheading 9503.49.0020, HTSUSA (other toys representing animals
or non-human creatures), or 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 article by
name under the item no. in which it is included, as indicated below.

Item 4900G

9502.10.4000 9503.49.0020

Juggernaut Archangel

Cyclops Apocalypse

Magneto

Wolverine

Item 4900K

9502.10.4000 9503.49.0020

Magneto Iceman

Storm Sauron

Mr. Sinister Night Crawler

Weapon X Wolverine

Item 4900I

9502.10.4000

Morph

Trevor Fitzroy

Robot Wolverine (Albert)

Random

Item 49110 (X-Men Projectors)

9502.10.4000 9503.49.0020

Wolverine Apocalypse

Cyclops

Magneto

Sabretooth

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Item 49220 (X-Men Steel Mutants)

9502.10.4000

Cable

Stryfe

Professor X

Magneto

Gambit

Bishop

Cyclops

Mr. Sinister

Item 33200/33201

9502.10.4000

\"Jumpsie\" Doll Set

ISSUES:

1\) Whether the figures 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 \"Jumpsie\" doll set\" and the \"X-Men
Steel Mutants\" are properly classified in the subheadings applicable to
the individual items; in subheading 9503.70.80, HTSUS, the provision for
other toys, put up in sets; or as sets pursuant to GRI 3.

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

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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.

Heading 9503, HTSUS, applies to \"other toys,\" i.e., all toys not
specifically provided for in the other headings of Chapter 95. The EN 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 EN
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.

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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 EN, 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, 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 two 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 the sample figures
identified as \"Random\" 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.

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The non-human feature immediately apparent on the figure identified as
Random, is its \"Missile Blasting Arm,\" a stack of 3 barrels which
appear to emerge from the upper left arm, and compose the lower half of
that appendage. The appearance of muscles and vessels running along and
around the barrels makes it

clear that the weapon is not part of the figure\'s body. Adding to the
effect is the fact that the entire appendage (with missile blaster) is
the same color and texture as the figure\'s other extremely muscular,
but essentially human-looking (right) arm.

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.

In considering whether the \"Steel Mutants\" and the \"Jumpsie\" doll
set are classified in the subheadings applicable to the individual
items, as \"Other toys, put up in sets\....,\" or as sets pursuant to
GRI 3, we note that the EN 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)

With regard to the various pairs of \"X-Men Steel Mutants,\" we do not
find that the articles differ from each other. 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.

Turning to the \"Jumpsie\" doll set, which does contain different types
of articles, we find that HRL 950700 (issued August 25, 1993) is
helpful. In that ruling, this office stated

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that the application of the toy set provision is relatively
straightforward when each item within a set individually is classified
as a toy, as opposed to an assortment consisting entirely or partly of
items which individually are classified elsewhere in the HTSUS. We noted
that some of the exemplars of

toy sets found in the EN (i.e., toy arms, tin soldiers, etc.) did not
fit the criteria for sets classified pursuant to GRI 3, because their
components were not classifiable in different headings. We also stated
that for merchandise to be properly classified in 9503.70, HTSUS, no
individual article should predominate over any other in the combination.

In the \"Jumpsie\" doll set, the collection is composed principally of a
doll packaged with items that offer creative ways to play with the doll.
The doll clearly predominates over the non-doll items (i.e., the toy
trampoline, pom-poms, and comb), which are put up with the doll as
accessories that enhance the doll\'s play value. Their use as toys in
their own right is not clearly indicated. This is not to say, however,
that the toy trampoline is an accessory of minor importance. Without it,
the doll\'s apparent jumping ability would be significantly reduced if
not nullified. The set, therefore, cannot be classified by reference to
GRI 1 because the two main components are classifiable in different
headings, i.e., headings 9502 and 9503, HTSUS.

In pertinent part, GRI 2(b) states that:

\[t\]he classification of goods consisting of more than one material or
substance shall be according to the principles of rule 3.

GRI 3(a) states, in pertinent part, that:

when two or more headings each refer to part only of the materials or
substances contained in mixed or composite goods or to part only of the
items in a set put up for retail sale, those headings are to be regarded
as equally specific in relation to those goods, even if one of them
gives a more complete or precise description of the goods.

Therefore, to determine under which provision the article will be
classified, we look to GRI 3(b), which states in pertinent part that:

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\[m\]ixtures, composite goods consisting of different materials or made
up of different components, and goods put up in sets for retail sale,
which cannot be classified by reference to 3(a), shall be classified as
if they consisted of the material or component which gives them their
essential character, insofar as this criterion is applicable.

With respect, initially, to whether the \"Jumpsie\" doll set comprises
goods put up in sets, we look to Explanatory Note X to GRI 3(b), which
indicates that for purposes of the rule, the term \"goods put up in sets
for retail sale\" means goods which:

\(a\) consist of at least two different articles which are prima facie,
classifiable in different headings;

\(b\) consist of products or articles put up together to meet a
particular need or carry out a specific activity; and

\(c\) are put up in a manner suitable for sale directly to users without
repacking (e.g., in boxes or cases or on boards).

As previously noted, the subject goods meet criteria (a) and (c). With
regard to criterion (b), we find that the items are put up together to
carry out the specific activity of providing amusement through playing
with a \"jumping\" doll. The article is a set.

In order to determine the essential character of the set, we next view
Explanatory Note VIII to GRI 3(b), which provides the following
guidance:

The factor which determines essential character will vary as between
different kinds of goods. It may, for example, be determined by the
nature of

the material or component, its bulk, quantity, weight or value, or by
the role of a constituent material in relation to the use of the goods.

Although we previously noted that the doll\'s \"jumping\" ability would
be adversely affected by the toy trampoline\'s absence, the doll\'s role
in relation to the use of the entire article is clearly paramount.
Without the toy trampoline, the article would remain a doll (capable of
at least some movement) and its accessories. The doll is also the item
of greatest bulk, weight, and value. It provides the set with its
essential

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character. Therefore, the \"Jumpsie\" doll set is classified in heading
9502, HTSUS. (For a similar ruling on this issue, see HRL 088004, issued
December 21, 1990.)

With regard to the classification of the toy weapons and equipment that
accompany some 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.

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 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 EN 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 4900G

The figures identified as Juggernaut, Cyclops, Magneto

and Wolverine are 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.

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The figures identified as Archangel and Apocalypse 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 (in 1994) is 6.8 percent ad valorem.

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 4900I

The figures identified as Morph, Trevor Fitzroy, and Robot Wolverine
(Albert) are properly classified (in 1994) in subheading 9502.10.4000,
HTSUSA.

The figure identified as Random 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.

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:

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Other: Other: Other: Printed on paper in whole or in part by a
lithographic process.\" The applicable rate of duty (in 1994) is 0.4
percent ad valorem.

Item 33200/33201 (\"Jumpsie\" Doll Set)

The article identified as the \"Jumpsie\" doll set is properly
classified (in 1994) in subheading 9502.10.4000, HTSUSA.

Except to the extent that reclassification of the merchandise as
indicated above results in a net duty reduction and partial allowance,
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