CLA-2 RR:TC:FC 957688 GGD
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." -2-
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. -3-
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 -4-
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 -5-
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. -6-
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. -7-
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 -8-
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: -9-
[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 -10-
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. -11-
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: -12-
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