HQ 958243: Decision on Application for Further Review of Protest No.3001-95-100295, filedApril 13, 1995, concerning the classification of various toycreatures and action figures

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 958243

                        February 28, 1996

CLA-2  RR:TC:FC  958243 RC

CATEGORY:  Classification

TARIFF NO.:  9503.49.0020 

Port Director of Customs
1000 Second Avenue, Suite 2200
Seattle, Washington 98104-1049

RE:  Decision on Application for Further Review of Protest No.
3001-95-100295, filed
April 13, 1995, concerning the classification of various toy
creatures and action figures

Dear Sir:

     This is a decision on a protest timely filed April 13, 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 9503.49.0020, 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 44100
Maximum Carnage




Item 47360
Spider-man
Venom          
     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.  They appear  muscular. 
Some figures are packaged with small toy accessories such as
weapons or tools.  

ISSUE:

     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.

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 Headquarters Ruling Letter (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."  

     We find that the "Maximum Carnage," "Spider-man," and
"Venom" figures classified at entry as falling into heading 9502,
HTSUS, manifest non-human characteristics immediately apparent to
a casual observer. 

     At first glance, the "Maximum Carnage," "Spider-man," and
"Venom" figures appear to have insect- or creature-like features. 
Close examination is not required to discover that they all, 
lack human-like features such as a mouth, a nose, ears, hair,
skin, etc.  "Maximum Carnage" and "Venom," for example, have
mouths that look more dog-like than human.  "Spider-man" does not
even have a mouth.  They all have eyes that look more insect-like
than human.  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 "Maximum Carnage," "Spider-man," 
and "Venom," provide a basis upon which to re-classify these
items in heading 9503, HTSUS, as toys representing animals or
non-human creatures.  As such, the figures fall into heading
9503, HTSUS, a position supported by the ENs. 

HOLDING:

     The figures identified as "Maximum Carnage," "Spider-man,"
and "Venom," 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
is 6.8 percent ad valorem (1994).

     You are instructed to allow the protest in full.  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