CLA-2 RR:CR:GC 962336 PH
Louis S. Shoichet, Esq.
Tompkins & Davidson, LLP
One Astor Plaza
1515 Broadway
New York, N.Y. 10036-8901
RE: "Action Flats" sports figures
Dear Mr. Shoichet:
This is in reference to your request to the Director, Customs National Commodity Specialist Division, New York, NY, dated October 13, 1998, on behalf of The Topps Company, Inc., for a ruling as to the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of "Action Flats" sports figures. A sample was provided. Your letter was referred to this office for reply. In the preparation of this ruling, consideration was given to the arguments made in your meeting with representatives of this office on September 30, 1999. We regret the delay.
FACTS:
The merchandise under consideration consists of 3 1/2 inch high plastic reproductions of well known National Football League (NFL) players. The figures are in the uniform of their team and in an athletic pose. The figures are not fully three-dimensional in form, but relatively flat (with a slight "relief" effect). They are permanently set on a plastic oval base, which permits them to stand alone.
You state that each figure will be individually imported and sold with a corresponding "trading" card. The cards are printed in the United States, exported, and returned packaged with the plastic figures. You anticipate that the figures will be marketed in major toy stores and chains, toy departments of mass merchandisers, and hobby shops.
Promotional material submitted with your letter describes the merchandise as "NFL Action Flats, the newest sports collectible from [your client in this matter]". It is also stated that "[e]ach [flat] has its own collectible display case/storage unit." Throughout this literature, the articles are described as "collectible[s]" for "collectors and "sports enthusiasts" or "fans".
ISSUE:
Whether the "Action Flat" sports figures are classifiable as other articles of plastics, statuettes and other ornamental articles, in subheading 3926.40.00, HTSUS, or dolls representing only human beings, in subheading 9502.10.00, HTSUS.
LAW AND ANALYSIS:
Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). GRI 1 states in part that for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes, and provided the headings or notes do not require otherwise, according to GRIs 2 through 6, taken in order.
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the System. Customs believes the ENs should always be consulted. See T.D. 89 80, published in the Federal Register August 23, 1989 (54 FR 35127, 35128).
The HTSUS subheadings under consideration are as follows:
3926 Other articles of plastics and articles of other materials of headings 3901 to 3914:
3926.40.00 Statuettes and other ornamental articles
9502 Dolls representing only human beings and parts and accessories thereof:
9502.10.00 Dolls, whether or not dressed
Note 2(v), Chapter 39, HTSUS, provides that "[t]his chapter does not cover ... [a]rticles of chapter 95 (for example, toys, games, sports equipment) ...." Accordingly, if the figures are classifiable as dolls of heading 9502, HTSUS, they may not be classified in heading 3926, HTSUS.
EN 95.02 states that:
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 use in Punch and Judy or marionette shows, or those of a caricature type. ...
As you state, classification of dolls has been the subject of numerous administrative and judicial decisions. In Hasbro Industries, Inc. v. United States, 7 Fed. Cir. (T) 110, 879 F.2d 838 (1989), the Court affirmed a Court of International Trade (CIT) decision (12 CIT 983, 703 F. Supp. 941 (1988)) that "G.I. Joe Action Figures" were classifiable as "dolls", under the Tariff Schedules of the United States (TSUS), the predecessor to the HTSUS. The "G.I.Joe Action Figures" had the appearance of human beings and were described as "... noticeably lifelike and constructed in a manner which permits an impressive range of movement" (7 Fed. Cir. (T) at 111). They were packaged singly in a large plastic blister mounted on a large card with biographical information for each figure, and came with their own "specialized accessories." In affirming the classification of the figures as dolls, the Court stated:
Earlier cases cited by the [CIT] indicate that the term "doll" has been interpreted broadly by the courts. See United States v. Cody Manufacturing Co., Rohner Gehrig & Co., 44 CCPA 87 ... (1957); see generally Russ Berrie & Co. v. United States, [ 76 Cust. Ct. 218, 223, C.D. 4659,] 417 F. Supp. 1035, 1039 (Cust. Ct. 1976) ("Equally well established is the concept that a doll for tariff purposes is not confined to playthings for children but includes a wide range 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, adult novelties, etc.") Hasbro has given no compelling reason for this court or the [CIT] to alter this interpretation. [7 Fed. Cir. (T) at 112]
In Russ Berrie, supra, the Court thoroughly reviewed the meaning of "doll" for tariff purposes, and further stated (76 Cust. Ct. at 224-225):
... [T]he common meaning of the word "doll" encompasses a great variety of merchandise. Perhaps because the variety is so vast, the courts have not been able to render a comprehensive definition of the term "doll," nor have they been able to "... make any all-embracing finding as to what is a doll or to hold that all small figures are dolls ...." [Quoting from Louis Wolf & Co., Inc. v. United States, 15 Cust. Ct. 156,161, C.D. 963 (1945)]
See also, Midwest of Cannon Falls, Inc. v. United States, 20 CIT 123 (1996); affirmed in part, reversed in part on other grounds, 122 F.3d 1423 (Fed. Cir. 1997), in which the Court cited Russ Berrie, supra, for the proposition that "[t]he definition of ‘doll’ is broad[;] ... [d]olls may be used for ornamentation, decoration, art, and religious observance ... [and] are representations of humans, in either realistic or caricature form" (20 CIT at 128); House of Lloyd, Inc. v. United States, 13 CIT 414, 416 (1989), in which the Court stated: "The court cannot accept a blanket rule that every decorative article with some doll-like feature is simply a doll"; and S.S. Kresge Co. v. United States, 25 Cust. Ct. 89, C.D. 1269 (1950), in which hand-painted paper mache figures approximately 4 3/4" to 5" in height representing youthful persons and adults, each standing on a base, used as ornaments in the home, were held not to be "dolls" for tariff purposes, but "... more properly embraced within the definitions of the words ‘figurines,’ ‘statuettes,’ and ‘images’" (25 Cust. Ct. at 92).
In interpreting these judicial precedents, Customs has concluded that "[t]his broad interpretation of the term, ‘doll,’ ... indicates case by case treatment of such figures upon consideration of many factors" (Headquarters Ruling Letter (HQ) 082001 dated February 13, 1990; see also Customs Service Decision (C.S.D.) 84-32, in which we affirmed that "... the classification of articles as dolls depends on the circumstances in each individual case" (Customs Bulletin, Vol 18, 1994, at 902)). In HQ 082001 we held "Starting Lineup" figures, "finely detailed, authentic reproductions of well known sports personalties", to be dolls classifiable in subheading 9502,10.40, HTSUS. The figures were fully three-dimensional (i.e., not "flat") and were articulated, "to the extent that the arms, heads and waists of each player [could] be rotated to simulate live action movement." As in this case, the figures were to be sold in an individual blister pack with a "collector’s card" and they were to be marketed through the same kinds of stores as those through which the "Action Flats" are to be marketed.
Other rulings, including those you cited, are consistent with this "case by case" treatment of the interpretation of "dolls" for tariff purposes. See, generally, HQ 085164 dated October 18, 1990, in which various sports figures (fully three-dimensional), articulated so that the arms, heads, and waists of each figure could be rotated, with a base upon which each figure stands, were classified as dolls of heading 9502, HTSUS; HQ 086633 dated September 18, 1990, and HQ 088895 dated March 22, 1993, in which cartoon characters (fully three-dimensional) with farm implements were classified as dolls of heading 9502 (except for a figure not representing a human, which was classified in heading 9503, as a toy); and HQ 956407 dated August 26, 1994, in which zinc figures of popular comic book characters (fully three-dimensional), claimed to be designed for collectors, were classified as dolls of heading 9502. See also, HQ 954996 dated April 15, 1994, HQ 954997 dated July 1, 1994, HQ 954999 dated June 24, 1994, and HQ 954616 dated May 10, 1994, in each of which plastic figures (fully three-dimensional) to be used as cake decorations were classified as dolls of heading 9502 (if representing human figures) or toys of 9503 (if representing other than human figures), on the basis that the figures were of sufficient quality to be retained by a child and be used principally for amusement, throughout the year, either as a doll or toy. In regard to "flat" figures, see HQ 956676 dated January 23, 1995, in which paper dolls with stands, textile outfits, and bags for storage of the paper dolls, outfits, and accessories were classified as dolls of heading 9502; New York Ruling Letter (NY) 803501 dated November 21, 1994, in which scarecrows of wire, fabric, and straw with a head and torso formed from a flat piece of cardboard covered by textile material were classified as dolls of heading 9502; and NY B86515 dated August 19, 1997, in which the "Mix ‘N’ Match Adventure Playset", consisting of flat plastic coated figures with stick-on coating and accessories and a printed magnetized board with a scenic background on which the figures and component pieces could be arranged was classified as dolls of heading 9502.
In all of these cases, except the last three, the figures were fully three-dimensional and not flat. Each of the last three cases is distinguishable from the "Action Flat" figures under consideration. That is, paper dolls have historically been classified as dolls (see, e.g., Abstract 14438, in which "a small doll cut out of a piece of stiff cardboard suitably colored [with] arms [that] are movable" was classified as a doll in Paragraph 1414, Tariff Act of 1922). Further, the outfits and accessories accompanying the paper dolls provide evidence that their use is that which is most commonly described for dolls ("amusement of children", EN 95.02, see also the dictionary definitions cited and quoted in R. Dakin & Co. v. United States, 14 CIT 797, 752 F. Supp. 483 (1990)). The figures in the "Mix ‘N’ Match Adventure Playset" are basically the same as a paper doll, except that they are of plastic. Since there is no limitation on the material making up a doll of heading 9502, the same rationale resulting in classification of paper dolls in heading 9502 results in the classification of these figures in that heading (see Abstract 14438). In regard to the scarecrows of NY 803501, we believe that holding was consistent with R. Dakin, supra, in which articles resembling a newborn infant wrapped in a blanket which "[did] not possess tangible torsos" (14 CIT at 800) were held to be dolls and in which Customs determinations that "broom dolls" without limbs and dolls without legs or feet were referred to. However, we note that NY 803501 has been modified or revoked by judicial action in Midwest of Cannon Falls, supra (see NY D89717 dated April 22, 1999).
We conclude that the "Action Flat" figures are not dolls. As noted above, we have thoroughly considered the available precedents. The precedents most closely similar to the "Action Flat" figures are HQ 082001 (the "Starting Lineup" figures) and HQ 085164 (various sports figures). In each instance, the figures were articulated and, as with all of the above-described decisions (except in the instances distinguished from the "Action Flat" figures in the immediately preceding paragraph) were fully three-dimensional. The "Action Flats" figures are neither fully three-dimensional nor articulated (although articulation is not necessarily determinative, we note the discussion of articulation in C.S.D. 84-32, supra, in which it is stated "... when articulations are present, that feature is more often than not the distinguishing feature when viewed against the background of the various definitions which tend to define toy soldiers as figurines or statuettes ..."; see also the Court’s recognition of the "impressive range of movement" of the figures in Hasbro, supra). As the Court stated in House of Lloyd, supra, "[t]he court cannot accept a blanket rule that every decorative article with some doll-like feature is simply a doll". The "Action Flats" are "... more properly embraced within the definitions of the words ‘figurines,’ ‘statuettes,’ and ‘images’" (S.S. Kresge, supra). They are classified as statuettes and other ornamental articles of plastics in subheading 3926.40.00, HTSUS.
HOLDING:
The "Action Flat" sports figures are classifiable as other articles of plastics, statuettes and other ornamental articles, in subheading 3926.40.00, HTSUS.
Sincerely,
John Durant, Director,
Commercial Rulings Division