HQ 957803: Application for Further Review of Protest No. 3001-95-100096, Plush "Spiderman"

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.

                         February 2, 1996


                            HQ 957803


CLA-2   RR:TC: FC   957803 ASM

CATEGORY:   Classification

TARIFF NO.:   9503.41.1000

Port Director of Customs
1000 2nd Ave.
Room 2200
Seattle, WA   98104

     RE:   Application for Further Review of Protest No. 3001-95-100096, 
             Plush "Spiderman"

Dear Sir:

     This is a decision on a Further Review of Protest No. 3001-95-100096, against your  decision, in the classification of a
plush figure identified as "Spiderman" (Item No. 47320).

FACTS:

     The subject merchandise, was liquidated under subheading
9502.10.8000, of the Harmonized Tariff Schedule of the United
States Annotated (HTSUSA), the provision for dolls, dutiable at
12 percent ad valorem.

     The protestant seeks reclassification of the goods to
subheading 9503.49.00, HTSUSA, as  "toys representing animals or
non-human creatures ...Other," which is dutiable at 6.8 percent
ad valorem.  The protestant asserts that Spiderman, other than
having a human-shaped body, has no human characteristics.  
      
ISSUE:

     Whether the subject merchandise, a plush "Spiderman" figure
(Item No. 47320) is classifiable as a "doll" under subheading
9502.10.8000, HTSUSA, or as "toys representing animals or non-human creatures...Other," under subheading 9503.49.00, HTSUSA.
                              - 2 -


LAW AND ANALYSIS:

     Classification under the HTSUSA is made in accordance with
the General Rules of Interpretation (GRI's).  The systemic 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's may
then be applied.  The Explanatory Notes to the Harmonized
Commodity Description and Coding System (EN's), 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's.

     Heading 9502, HTSUSA, provides for "Dolls representing only
human beings and parts and accessories thereof."  The EN's 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 EN's to heading 9503, HTSUSA, 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's 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
     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.


                              - 3 -


     The subject article is a stuffed figure of the "Marvel
Comics" character identified as "Spiderman."  The article is
constructed of plush blue and red fabric.  The red  fabric has
been printed with a black spider web design and a large spider
has been printed on the front and back of the figure.  The head
of this figure is clearly non-human in appearance.  The head is
constructed of red fabric and is completely covered with the
spider web design.  It is smooth and completely devoid of such
human characteristics as hair, nose, mouth, and ears.  The most
prominent feature of the head consists of  two large tear drop
shaped eyes having a white center and black outline.  The eyes
are clearly non-human in that they have no eye lids, iris, or
pupils. 

     Taken as a whole, it is evident that the figure is non-human
because its face is devoid of any human characteristics. 
Further, in its condition as imported, there is no way to
determine underlying characteristics that might lead to a
conclusion that the figure is a human doll.  The article is  sewn
and stuffed, and has no accessories or removable clothing.  As
such, it is our determination that this article, identified as a
plush "Spiderman" (Item No. 47320), should be classified under
subheading 9503.21.1000, HTSUSA, as a stuffed toy representing a
non-human creature.

HOLDING:

     The subject merchandise, is properly classified under
subheading 9503.41.1000,    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:  Stuffed toys and parts and accessories
thereof: Stuffed toys."   The applicable rate of duty (in 1994)
is 6.8 percent  ad valorem.

     Since reclassification of the merchandise as indicated above
would result in the same rate of duty as claimed, you are
instructed to allow the protest in full.  A copy of this decision
should be attached to the Form 19, Notice of Action.

     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 entry 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 the public
via the Diskette Subscription Service, Freedom of Information
Act, and other public access channels.

                              Sincerely,



                              John Durant, Director
                              Tariff Classification
                              Appeals Division