CLA-2 CO:R:C:G: 082001 DPS
Ned H. Marshak, Esq.
Sharrets, Paley, Carter & Blauvelt, P.C.
Sixty-seven Broad Street
New York, New York 10004
RE: "Starting Lineup" Action Figures
Dear Mr. Marshak:
Your letter of March 21, 1988, on behalf of Kenner-
Parker Toys, Inc. (Kenner), requested a binding tariff
classification ruling for "Starting Lineup" figures produced
in China. Subsequent to that initial submission, a
conference was held with Headquarters personnel on October 7,
1988, which was followed by your letter dated October 12,
1988, transmitting numerous exhibits relevant to your
presentation. You submitted additional comments in support
of your client's position on November 8, 1988 and December
21, 1988. Another conference was held with Headquarters
attorneys on August 17, 1989, which was followed by further
submissions from your office. Having closely reviewed all
submissions and authorities relevant to the issues involved
in this case, we are now prepared to rule.
FACTS:
The merchandise consists of over 375 figures
representing players from the National Basketball Association
(NBA), the National Football League (NFL), and Major League
Baseball (MLB). The figures are finely detailed, authentic
reproductions of well known sports personalities. The faces
of the plastic figures resemble the faces of the athletes
they represent. The figures range in height between 3-1/2
and 5 inches, depending upon their positioning. Each player
is positioned in a pose that best represents his expertise,
and is clad in an appropriate team uniform, which is an
accurate representation of the uniforms worn by the teams in
each league. The uniforms are part of the molded plastic
pieces which comprise the figures. Each figure has one foot
attached to a small plastic base. The figures have been
formed by assembling five separately molded pieces which
include 2 arms, a head, an upper and a lower torso. In the
NFL football series, the helmet is not molded to the figure
as it is in the baseball series. Rather, it comes in the
package with each NFL figure. The figures are articulated,
to the extent that the arms, heads and waists of each player
can be rotated to simulate live action movement.
Each figure will be sold in an individual blister pack
with a "collector's card" setting forth the player's vital
statistics. Baseball, football, and basketball "collector's
stands" are currently the only accessories available for
these figures. Kenner states that the merchandise is
designed for children, ages 10-13, and adults. The figures
will be sold by Kenner through wholesalers to toy stores,
mass merchandisers and nontraditional toy vendors
(collectors, hobby and team shops).
Kenner asserts that the subject merchandise is
classifiable as "statuettes and other ornamental articles,"
of plastics, under subheading 3926.40.0000, HTSUSA, not as
"Dolls representing only human beings," under subheading
9502.10.4000, HTSUSA, for two basic reasons: (1) the figures
are neither commonly nor commercially known as dolls; and (2)
the figures are neither children's playthings nor provide the
same type of frivolous enjoyment as children's playthings.
ISSUE:
Whether the "Starting Lineup" sports figures at issue
are properly classifiable as dolls, under subheading
9502.10.4000, HTSUSA; as statuettes of plastics, under
subheading 3926.40.0000, HTSUSA; or as other toys, under
subheading 9503.49.0020, HTSUSA.
LAW & ANALYSIS:
In support of its proposed classification as statuettes
of plastic, under subheading 3926.40.0000, HTSUSA, Kenner
argues: (1) the figures themselves are finely detailed,
authentic reproductions of sports personalities; (2) the
figures are attached to plastic bases which are crafted in a
manner intended to enhance their display value and
collectibility, which results in the figures having a
distorted appearance when repositioned; (3) the presence of
bases attached to each figure, and the fact that only one
realistic pose per figure is possible, prevents the figures
from being used by children as playthings and enhances their
salability as collectibles; (4) because of their limited
play value, and focus on individual sports personalities, the
figures will only be purchased by older children (ages 10-
13), and adults, in the same manner as baseball cards and
sports posters; (5) "collector's stands," which serve to
enhance the figures' ease of display, are the only
accessories available for the figures; (6) each figure is
sold in an individual blister pack, along with a "Collector's
Card" setting forth the player's career statistics, thereby
combining the attributes of baseball cards and posters with
the figures; (7) the figures will be sold by Kenner through
wholesalers to mass merchandisers, toy stores and
nontraditional toy vendors (e.g., collectors, hobby and team
shops)--thereby competing with baseball cards, sports posters
and other articles purchased by avid sports fans, not G.I.
Joe or Barbie; and finally, (8) the figures are not marketed,
advertised, bought, sold, packaged or in any manner referred
to by Kenner or persons in the toy trade as dolls.
The General Rules for the Interpretation of the
Harmonized System (GRI's) govern classification under the
Harmonized Tariff Schedule. According to GRI 1, the primary
consideration in determining whether merchandise should be
classified in a heading should be given to the language of
the heading and any relevant chapter or section notes, and,
provided such headings or notes do not otherwise require,
according to the remaining GRI's, taken in order. The
subheadings at issue in this case are:
(a) 3926.40, Other articles of plastics and
articles of other materials of headings 3901
to 3914: Statuettes and other ornamental
articles; and
(b) 9502.10, Dolls representing only human
beings and parts and accessories thereof:
Dolls, whether or not dressed: Other: Not
over 33 cm in height;
Consistent with GRI 1, the first inquiry here is
determining whether the subject merchandise is considered a
doll. If not, then reference to 3926.40.0000, HTSUSA, the
provision covering other articles of plastics, is necessary.
In deciding whether the "Starting Lineup" figures are
considered dolls for tariff purposes, we refer to the
Explanatory Notes to the HTSUSA, lexicographic authorities
and court decisions interpreting the term "Doll." Although
no court decisions interpreting the term "Doll" under the
HTSUSA have been rendered, numerous decisions under the
former Tariff Schedules of the United States (TSUS), provide
guidance with regard to the scope of the term.
The Explanatory Notes to the HTSUSA, which constitute
the official interpretation of the tariff at the
international level, provide guidance in determining the
scope of each provision. With regard to Heading 9502,
HTSUSA, the provision for dolls representing only human
beings, Explanatory Note (EN) 95.02, at p. 1586 states:
The heading includes not only dolls designed
for the amusement of children, but also dolls
intended for decorative purposes (e.g.,
boudoir dolls, mascot dolls), or for the use
in Punch and Judy or marionette shows, or
those of a caricature type.
Dolls are usually made of rubber, plastics,
textile materials, wax, ceramics, wood
paperboard, papier mache or combinations of
these materials. They may be jointed and
contain mechanisms which permit limb, head or
eye movements as well as reproductions of the
human voice, etc. They may also be dressed.
The General Explanatory Notes to Chapter 95, at p.1585,
which explain the general scope of the chapter, provide:
This Chapter covers toys of all kinds whether
designed for the amusement of children or
adults....
A close reading of the Explanatory notes indicates that
the subject merchandise is not excluded from Chapter 95 or
Heading 9502. The general notes indicate that items in this
chapter include those designed for the amusement of children
and adults. A host of lexicographic authorities, including
various editions of Webster's and Random House, define
"amuse," as "holding the attention of (someone) agreeably,"
or, "to entertain or divert in a pleasant or cheerful
manner." The figures at issue provide such amusement for
children and adults, are sold in normal toy channels, and
sold and marketed as toys, as well as collectibles. It is
Customs' position that this type of figure, a realistic
representation of a sports figure, with movable arms, head
and torso, are of the class of merchandise covered by Heading
9502.
Various courts have addressed the issue of what
constitutes a doll. What has emerged from the court opinions
is the concept that dolls, for tariff purposes, are not
confined to playthings for children or adults, but include a
wide variety of other articles including but not limited to
dolls for ornamentation such as boudoir dolls, souvenir or
prize dolls, dolls for display or advertising purposes, and
dolls sold as gag items, bar gadgets and adult novelties.
This broad interpretation of the term, "doll," by the Customs
Court and more recently by the Court of International Trade
in, inter alia, Louis Marx & Co., Inc. v. United States, 65
Cust. Ct. 672, C.D. 4156 (1970); Russ Berrie & Co. v. United
States, 417 F.Supp. 1035, 1039 (Cust. Ct. 1976); and Hasbro
Industries, Inc. v. United States, 703 F.Supp. 941 (CIT
1988), aff'd, 879 F.2d 838 (Fed. Cir. 1989), indicates case
by case treatment of such figures upon consideration of many
factors.
Kenner argues that the figures are more akin to
statuettes than dolls. However, in order to even consider
classifying the items as statuettes, under 3926.40.0000,
HTSUSA, pursuant to GRI 1, we must first determine that the
subject figures are not classifiable as dolls.
In support of its proposed classification, Kenner
argues that a number of elements distinguish the Starting
Lineup figures from dolls and detract from their play value.
They are: (1) the existence of a base attached to the figures
enhances their display value and collectibility; (2) the
notion that only one realistic pose per figure is possible
distinguishes the item from dolls; and (3) that the
movability of the arms, head and torso is only a design and
cost cutting measure, not intended to allow or encourage
play. Kenner claims that the items are designed solely for
display and collectibility purposes, and that any play value
derived from the figures is purely incidental.
The Explanatory Notes and the case law construing the
term, "doll," do not limit application of the term to
children's playthings, nor do they imply that to be a doll,
for tariff purposes, an item must provide "frivolous
enjoyment," as Kenner argues. Even if we accepted Kenner's
assertion, examination of the subject figures reveals an
array of doll-like qualities. The fact that the arms, neck
and torso can be moved is a significant element of the
product, allowing manipulation of the figures into either
realistic or unrealistic poses. Further, such movability
coupled with the vast array of available figures representing
members of professional baseball, football and basketball
teams, makes the items conducive to imaginative play.
Although the movability feature is stated to be "cost of
manufacture" oriented, it is Customs' position that the
feature enhances the use as a toy for imaginative play, or as
a more sophisticated display figure for the collector.
These qualities merely add to the product's identity as a
doll.
In light of the foregoing, it is Customs position that
the subject "Starting Lineup" figures are, for tariff
purposes, classifiable as dolls. The courts apply a broad
interpretation to the term doll, one which we believe
encompasses the subject merchandise. Furthermore, the
structure of the HTSUSA, and its inclusion of "statuettes and
other ornamental articles" of plastic in a "not specifically
provided for" heading, prevents us from getting to GRI 3(a)
to determine which heading is more specific, because: (1)
these figures meet the broad definition of doll advanced by
the courts; and (2) the competing provisions, dolls versus
statuettes, are not at the same 4-digit level, which,
pursuant to GRI 1, requires classification of the item under
9502, HTSUSA, if it meets the definition of doll.
HOLDING:
The "Starting Lineup" figures, for tariff purposes, fall
within the common meaning of the term "doll" as set forth in
lexicographic authorities and judicial precedent. They are
classifiable under subheading 9502.10.4000, HTSUSA, the
provision for dolls, not over 33 cm. in height. Items
classified under this subheading are dutiable at the rate of
12 percent ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division