United States International Trade Commision Rulings And Harmonized Tariff Schedule
faqs.org  Rulings By Number  Rulings By Category  Tariff Numbers
faqs.org > Rulings and Tariffs Home > Rulings By Number > 1997 HQ Rulings > HQ 956753 - HQ 958464 > HQ 958039

Previous Ruling Next Ruling
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

Previous Ruling Next Ruling

See also: