CLA-2 RR:TC:FC 958244 RC
Port Director of Customs
1000 Second Avenue, Suite 2200
Seattle, Washington 98104-1049
RE: Decision on Application for Further Review of Protest No.
3001-95-100346, filed
May 19, 1995, concerning the classification of various toy
creatures and action figures
Dear Sir:
This is a decision on a protest timely filed May 19, 1995,
against your decision in the classification under the Harmonized
Tariff Schedule of the United States Annotated (HUSUSA) of
articles entered from October through December 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 9503.49.0020, 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.
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 45100
Black Bolt
Moleman
Terrax
Dr. Doom
Mr. Fantastic
Silver Surfer
The Thing
Item 47720
Carnage
Kraven
Vulture
All figures have two legs and are capable of standing erect. Their heads and appendages, both upper and
lower (e.g., arms, legs, and/or weapons, etc.) are moveable. Some figures appear muscular. Some figures are
packaged with small toy accessories such as wings, weapons or tools.
Each figure is packaged and sold separately, except for Moleman. The latter is packaged and sold with
another human-like figure.
ISSUE:
1) Whether the figures fall into 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 toy figures retail packaged in pairs are more 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 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 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. Customs has ruled that the Dr. Doom figure falls into heading 9503, HTSUS. See,
HRL 957603 (October 12, 1995). With respect to the exceptions referenced above, "The Thing" and "Carnage," both
were
classified as dolls upon entry, but we find the features of these figures provide a basis upon which to classify these items
in heading 9503, HTSUS, as toys representing animals or non-human creatures.
"The Thing" and "Carnage," figures appear to have insect- or creature-like features. Close examination is not
required to discover that they both lack human-like features such as a mouth, a nose, ears, hair, skin, etc. "Carnage,"
for example, has a mouth that look more dog-like than human. "The Thing" has flesh more like a robot or rhinoceros
than human-like. We find the casual observer would immediately see that the articles do not appear to represent
humans, but rather non-human creatures. As such, the figures fall into heading 9503, HTSUS, a position supported by
the ENs.
With regard to whether articles packaged to contain two figures (i.e., the "Moleman" pair of figures) 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 "Moleman" is composed of a pair of figures put up in the same packing principally for amusement, it is
not composed of articles which differ from one another, i.e., both figures are dolls classifiable in heading 9502, HTSUS.
Since the "Moleman" article is composed of two dolls, each falling into heading 9502, HTSUS, it is not
classifiable as a set in subheading 9503.70.8000, HTSUSA, nor as a set pursuant to GRI 3. Those classifications are
for goods, prima facie, classifiable under two or more headings. The moleman figures are separately classifiable in the
subheadings applicable to the individual items.
HOLDING:
The figures identified as "The Thing," "Carnage," and "Dr. Doom," fall 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." The applicable rate of duty is 6.8 percent ad valorem (1994).
The figures identified as "Black Bolt," "Moleman," "Terrax," "Mr. Fantastic," "Silver Surfer," "Kraven," and
"Vulture," fall into 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 (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 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