us-cbp-cross-rulings-hq-958039•HQ 958039: Decision on Application for Further Review of Protest No. 3001-95-100098, filed February 3, 1995, concerning the classification of toy action figures
HQ 958039: Decision on Application for Further Review of Protest No. 3001-95-100098, filed February 3, 1995, concerning the classification of toy action figures
us-cbp-cross-rulings-hq-958039HQ 958039: Decision on Application for Further Review of Protest No. 3001-95-100098, filed February 3, 1995, concerning the classification of toy action figuresGuidance
Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.
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
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