CLA-2 OT:RR:CTF:TCM H201596 HvB
Thomas M. Keating, Esq.
Hodes, Keating & Pilon
134 North LaSalle Street
Suite 1300
Chicago, IL 60602
RE: Tariff classification of interactive infant simulator doll; NY H80337 Revoked by Operation of Law
Dear Mr. Keating:
This is in response to your letter dated September 18, 2009, on behalf of Realityworks, Incorporated (“Realityworks”), in which you requested reconsideration of New York (NY) Ruling Letter H80337, dated May 22, 2001. You included a sample in your submission, which will be returned to you per your request. You state that since 2006, subsequent to our publication of H80337, Realityworks has redesigned the article in question. Accordingly, we consider the instant product to be distinct from the subject of NY H80337. We will treat your reconsideration request as a request for a prospective ruling.
FACTS:
The subject “RealCare Baby” is as an interactive infant simulator doll, which simulates the actions of a real baby and is designed to provide hands-on training as part of a curriculum intended to educate students on the practicalities, difficulties, and degree of commitment associated with caring for a baby. It simulates human actions such as crying, burping, and needing diaper changes.
The “RealCare Baby Package” consists of the infant simulator and the following parts and accessories: binders and CD-ROMS that provide the curriculum instruction and necessary software, “the Communication Pod” (a wireless device designed to connect the infant simulator’s internal computer to a central computer), an AC adapter used to charge the infant simulator’s internal battery, a RF ID bracelet, baby clothes, extra cotton baby diapers designed specifically for the infant simulator, and a plastic baby bottle.
The “RealCare Baby” is sold with a Radio Frequency (“RF”) ID bracelet to which only the RealCare Baby will respond. The student caregiver wears this bracelet and has limited time to respond to RealCare Baby’s crying, which reacts for example, by crying, burping, or cooing, depending on the student’s response. The infant simulator is anatomically correct, in that it weighs between 6.5 and 7 pounds, requires its head to be supported, as one would do when holding an infant.
The infant simulator is not available for purchase by individual retail sale. Instead, the doll is marketed and sold to educational institutions and various facilities, such as schools, hospitals, and community youth organizations as part of the “RealCare Baby Package.” See http://www.realityworks.com/FACS/customerstories.asp. You state that the article at issue qualifies for federal funding to educational institutions through the Carl D. Perkins Vocational and Applied Act (“Perkins Act”). If hypothetically available for retail purchase, you estimate that the retail cost of the individual infant simulator is approximately $746.
Together with the Communication Pod and the enclosed software, the infant simulator’s internal assembly allows for direct wireless communication with a central computer through which, the educator programs the RealCare Baby. The internal assembly is also designed to detect and record the level of care the doll receives, allowing the educator to monitor the student caregiver.
The curriculum features lesson plans that are not only designed to educate the student on how to provide proper care for a child, e.g. the “Shaken Baby Syndrome” chapter, but ones which are also intended to foster a student’s sense of self-esteem and personal goals, e.g. “Decisions that shape your future.”
ISSUE:
Whether the subject infant simulator is an article of heading 9023, HTSUS, which provides for “instruments, apparatus and models, designed for demonstrational purposes…” or whether it is classifiable in heading 9503, HTSUS, which provides for: “…dolls, other toys…”
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined 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 2 through 6 may then be applied in order.
The 2012 HTSUS provisions under consideration in this case are as follows:
9023 Instruments, apparatus and models, designed for demonstrational purposes (for example, in education or exhibitions), unsuitable for other uses, and parts and accessories thereof…
* * *
9503 Tricycles, scooters, pedal cars and similar wheeled toys; dolls’ carriages; dolls, other toys; reduced-scale (“scale”) models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof….
Note 1 to Chapter 90, HTSUS states, in pertinent part:
This chapter does not cover:
* * *
(k) Articles of chapter 95
The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While not legally binding or dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
With respect to “Dolls,” EN 95.03 provides, in pertinent part:
This group 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 use in Punch and Judy or marionette shows, or those of a caricature type.
Since Note 1(k) to Chapter 90, HTSUS, excludes of articles of chapter 95, we must first determine whether the article can be classified as a doll in heading 9503, thereby excluding classification in heading 9023, HTSUS.
The term “doll” is not currently defined in the HTSUS. When the tariff terms are not defined in the HTSUS or its legislative history, “the term’s correct meaning is its common meaning.” Mita Copystar Am. v. United States, 21 F.3d 1079, 1082 (Fed. Cir. 1994). The common meaning of a term used in commerce is presumed to be the same as its commercial meaning. Simod Am. Corp. v. United States, 872 F. 2d 1572, 1576 (Fed. Cir. 1989). To ascertain the common meaning of a term, a court may consult “dictionaries, scientific authorities, and
other reliable information sources” and “lexicographic and other materials.” C.J. Tower & Sons v. United States, 673 F.2d 1268, 1271 (CCPA 1982); Simod, 872 F.2d at 1576. In this case, the Oxford English Dictionary defines a doll as: “[a]n image of a human being (commonly of a child or lady) used as a plaything; a girl's toy-baby.” Thus, a doll shares characteristics with toys.
Although the term “toy” is not defined in the HTSUS, we have ruled in the past that heading 9503, HTSUS, covers toys intended essentially for the amusement of persons. See, e.g., Headquarters Ruling Letter (“HQ”) H065119, dated May 11, 2010. Heading 9503, HTSUS, is a "principal use" provision, as it pertains to “other toys”. See Minnetonka Brands v. United States, 110 F. Supp. 2d 1020, 1026 (CIT 2000). Given that dolls share many characteristics with “other toys” and that the two provisions are not separated by a semicolon in the text of heading 9503, HTSUS, we also consider “dolls” to be a use provision under Minnetonka. This conclusion is supported by EN 95.03, which states that heading 9503, HTSUS, includes “dolls designed for the amusement of children.” (emphasis added). Accordingly, our task is thus to ascertain whether the subject RealCare Baby is principally used for amusement.
For articles governed by principal use, Additional U.S. Rule of Interpretation 1(a), HTSUS, provides that, in the absence of special language or context which otherwise requires, such use "is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use." In other words, the article's principal use at the time of importation determines whether it is classifiable within a particular class or kind.
In determining whether the principal use of a product is for amusement, and thereby classified as a toy, CBP considers a variety of factors, including: general physical characteristics, expectation of the ultimate purchaser, channels of trade, environment of sale (accompanying accessories, manner of advertisement and display), use in the same manner as merchandise which defines the class, economic practicality of so using the import, and recognition in the trade of this use. United States v. Carborundum Co., 63 C.C.P.A. 98, 102, 536 F.2d 373, 377 (1976).
One of the purposes of the subject infant simulator is to expose students to the realities of parenting an infant. Its general physical characteristics speak to this purpose. We note that it is significantly heavier than a toy doll since it weighs approximately 6.5 - 7 pounds, the approximate weight of a newborn. In addition, when holding the infant simulator, one must support the head of the infant simulator to prevent it from falling backwards, as one would do so when holding a newborn. The doll is not available for purchase in toy stores; rather, it is marketed and sold to educational institutions and facilities. Thus, the channels of trade and environment of sale indicate that the RealCare Baby is not designed to be principally used for amusement purposes. The RealCare Baby is accompanied by accessories intended to facilitate its educational purpose, e.g., the RF ID bracelet, which links the caregiver and simulator so that the infant simulator will only respond to the student. The wireless device’s role in facilitating the programming of the infant simulator to respond to the student caregiver and report to the educator on such care indicate that this infant simulator has educational, and not amusement
purposes. Most toy dolls are not accompanied by lengthy instruction curriculums and manuals. Furthermore, the retail cost of $746 for the individual doll far exceeds the price a consumer might ordinarily pay for a toy doll. Similarly, in NY N037999, dated October 6, 2008, we classified the “Patient Puppet”, a product designed to educate young cancer patients about basic human anatomy, in heading 9023, HTSUS, noting that it was more expensive than a typical stuffed animal toy.
The Carborundum factors indicate that the subject RealCare Baby is unsuitable for use as a doll. It is also significant that the article at issue qualifies for federal funding under the Perkins Act. See HQ H050116, dated March 26, 2009, in which we classified a humanoid robot in heading 9023, HTSUS, based upon its use and noting the importance that the robot was “aimed solely at the education sector”. The article at issue is therefore not excluded from Chapter 95, per Note 1(k) to Chapter 90, HTSUS. We note that this decision is consistent with NY N099326, dated April 16, 2010, in which we classified the “NeoNatalie Newborn Simulator Training Kit,” an infant simulator that mimics the size and appearance of a newborn baby, in heading 9023, HTSUS.
The instant infant simulator is classified in heading 9023, HTSUS, because it is an instrument or apparatus designed for educational purposes and is unsuitable for other uses.
HOLDING:
By application of GRI 1, HTSUS, the subject infant simulator is classified in heading 9023, or more specifically subheading 9023.00.00, HTSUS, which provides for: “Instruments, apparatus and models, designed for demonstrational purposes (for example, in education or exhibitions), unsuitable for other uses, and parts and accessories thereof… …” The column one, general rate of duty is Free.
As noted above, NY H80337, dated May 22, 2001, was revoked by operation of law.
Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.
A copy of this ruling letter should be attached to the entry documents filed at the time the goods are entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the CBP officer handling the transaction.
Sincerely,
Ieva K. O’Rourke, Chief
Tariff, Classification & Marking Branch