CLA-2 RR:TC:FC 958129 RC
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