CLA-2 CO:R:C:G: 085164 DPS
Ned H. Marshak, Esq.
Sharrets, Paley, Carter & Blauvelt, P.C.
Sixty-seven Broad Street
New York, New York 10004
RE: Starting Lineup "One on One," "Team Lineup," and "Slam
Dunk," action figures
Dear Mr. Marshak:
Your letter of July 13, 1989, on behalf of Kenner
Products, a Division of Tonka Corporation ("Kenner"),
requested a binding tariff classification ruling for three
additions to Kenner's "Starting Lineup" line of products
which are manufactured in China. They are: "One on One,"
"Team Lineup," and "Slam Dunk." Subsequent to your initial
submission, conferences were held with Headquarters personnel
on August 17, 1989, and April 12, 1990. A written submission
was made on April 18, 1990, as a follow-up to the April 12,
1990 conference. In addition, we considered all written and
oral presentations made on behalf of Kenner in the individual
Starting Lineup figures case, Headquarters case number
082001, previously considered by this office.
FACTS:
The basketball "Slam Dunk" product consists of two
parts, a finely detailed reproduction of a well known all-
star National Basketball Association (NBA) player, and an
authentic reproduction of a basketball rim attached to a
backboard, stand and segment of the court floor. Each
component is made of plastic. The two parts together,
depict the player slam dunking the basketball (otherwise
known as stuffing the ball through the hoop). The player is
designed to hang on the rim where the wrist curves and the
basketball and hand meet. The player is not attached to a
base, but assumes its intended pose when hanging on the rim,
dunking the basketball.
Each 4 1/2 inch tall human figure is molded in five
pieces (lower body, torso, two arms and head) with one hand
attached to a basketball. Every NBA all-star featured in
Kenner's "Slam Dunk" line is clad in an appropriate team
uniform, which is an accurate representation of the uniforms
worn by the teams in the league. The uniforms are part of
the molded plastic pieces which comprise the figures. Kenner
states that there exists only one realistic pose for each
figure. Nevertheless, the figures are articulated, to the
extent that the arms, heads and waists of each player can be
rotated to simulate live action movement.
The "One on One" figures depict action sequences in
baseball, football and basketball. Two poses are available
in each sport. For baseball they are a play at the plate and
stealing a base. For football, they are a hit on a receiver
and pressure on the quarterback. For basketball, they are a
jump ball tipoff at center court and an attempted block of a
jump shot. Each "One on One" product contains two figures,
each of which is appropriately posed in the action match-up.
They are imported in sealed blister packs, accompanied by
"sports collector's cards" about the players involved.
Counsel has indicated that Kenner's desire for authenticity
and attention to detail is confirmed by the fact that its
"One on One" baseball fielders all play infield positions,
and in reality are involved in the play depicted, while its
football and basketball match-ups are equally realistic in
capturing match-ups and situations which actually occur
during the season.
Each of the two figures included in the "One on One"
product are permanently attached to a common base. The
figures range in height between 3-1/2 and 7 inches, depending
upon their positioning. The bases are irregularly shaped and
vary in size, depending upon the scene or "play" depicted.
The bases used in "One on One" measure up to 5-1/2 inches in
length and are much larger than the small bases attached to
the individual "Starting Lineup" figures classified in HRL
082001, which range in length from less than an inch to 2-1/2
inches depending on the figure. In the NFL football
series, the helmets are not molded to the players' heads as
they are in the baseball series. Rather, two small helmets
come in the "One on One" football series package, thereby
allowing the consumer to play with or display the product
with or without the helmets.
The "Team Lineup" product consists of a 16 x 3 inch
plastic base upon which nine plastic baseball players,
representing a particular team's "Starting Lineup," are
permanently attached. Eight 4-1/2 inch figures are standing,
while the ninth 3 inch figure (third from left) is kneeling
with a bat. The second figure from the left is wearing a
fielder's glove, and the team's catcher (third from right) is
outfitted in complete catcher's gear, including mask, glove
and chest protector. The starting pitcher (the middle
figure) has his hands on his hips and is wearing a warmup
jacket. While the plastic mold of the body of each figure
in a particular position on each base is identical,
individuality is obtained by painting an authentic uniform on
all players on each team, and by placing on each player a
hand painted, detailed head.
The figures used in the "One on One" and "Team Lineup"
series are constructed identically to all other "Starting
Lineup" figures. They are molded in five pieces thereby
enabling the head, arms and waist to be rotated to simulate
live action movement. Kenner states that the figures are
constructed in this manner to reduce manufacturing costs, and
obtain authenticity and realism. Kenner further states that
each figure is designed to maintain a single pose, as any
attempt to reposition a figure at its joints distorts the
realistic appearance. All of the figures are clad in
uniforms that accurately resemble the uniforms of the
respective professional teams. The uniforms are part of the
molded plastic pieces which comprise the figures.
As is the case with the individual "Starting Lineup"
products involved in HRL 082001, these three articles will be
marketed by Kenner as "Sports Super Star Collectibles," to be
sold in sporting outlets, as well as toy stores. Kenner's
sales promotion material and consumer advertising stresses
the merchandise's collectibility and authenticity.
Kenner asserts that each of the "Starting Lineup"
products at issue here, the "One on One," "Team Lineup" and
"Slam Dunk," are 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. In support
of its position, Kenner argues that the subject
"collectibles" fall within the purview of subheading
3926.40.0000 HTSUSA, since they are composed wholly of
plastics and clearly constitute "statuettes and other
ornamental articles." Kenner states that the three items at
issue are non-manipulative, uncomical collectibles to be used
for ornamental collection and display purposes, not as
playthings for frivolous enjoyment, nor as toys, as that term
is utilized in Chapter 95. Kenner further claims that "One
on One," "Team Lineup" and "Slam Dunk," do not fall within
the common meaning of the term "doll," since they do not
represent an individual human being, but rather multiple
figures of human beings.
ISSUE:
Whether Kenner's "Starting Lineup" "One on One," "Team
Lineup" and "Slam Dunk" are properly classifiable as dolls,
under subheading 9502.10.4000, HTSUSA; as statuettes and
other ornamental articles of plastics, under subheading
3926.40.0000, HTSUSA; or under some other provision within
the nomenclature.
LAW & ANALYSIS:
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 these types of figures, realistic
representations of sports celebrities, with movable arms,
heads and torsos, 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. 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, (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.
In Hasbro Industries, Inc. v. United States, 703 F.Supp.
941 (CIT 1988), aff'd, 879 F.2d 838 (Fed. Cir. 1989), the
Court of International Trade referred to a general definition
of the word "doll" as a representation of a human being used
as a child's plaything. The Federal Circuit Court of Appeals
accepted the lower court's definition but recognized that it
is not an all-inclusive definition for the term "doll." In
explaining its broad interpretation of the term doll the
appellate court cited the following language from Russ Berrie
& Co. v. United States, 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 and adult novelties, etc.
This recent interpretation of the tariff term "doll" by the
CIT and Federal Circuit Court of Appeals in Hasbro is
instructive for the purpose of classifying the subject
Starting Lineup figures under the HTSUSA.
Kenner argues that the figures are more akin to
statuettes than dolls. Emphasis is placed on the fact that
the subject merchandise consists of multiple figures on large
bases, which Kenner claims, cannot be classified as dolls
because the tariff term "doll," covers only single figures.
In addition, 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 and
display. 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,
and as a more sophisticated display figure for the collector,
whether displayed on a single small base or in multiples on
a larger base. The presence of a base is no bar to
classification as a doll since many dolls are either affixed
to a base or are sold with a stand which helps to hold the
doll in an appropriate pose. These qualities merely add to
the products' classification as dolls.
The larger bases along with the positioning of the
figures depicted in a set pose, reflecting one play for the
"One on One," and the team pose for the "Team Lineup," makes
the figures less manipulable and less conducive to
imaginative play than the individual figures classified in
HRL 082001. However, these distinguishing characteristics
are not sufficient to change the classification of the
multiple figure items from dolls to other articles of
plastic. No HTSUSA or TSUS judicial or administrative
precedent exists to support a conclusion that dolls which, if
presented individually, are classifiable as dolls under
subheading 9502.10.4000, HTSUSA, but if presented
collectively on a larger base, would be classifiable under
the provision for other articles of plastic...statuettes and
other ornamental articles, in subheading 3926.40.0000,
HTSUSA.
Under the circumstances, it is Customs position that the
two products which contain multiple figures ("One on One" and
"Team Lineup") are classifiable as dolls because
individually, or as multiples, they are of the same class of
merchandise classifiable under the provision for dolls,
Heading 9502, HTSUSA. As explained in Hasbro Industries,
Inc. v. United States, 703 F.Supp. 941 (CIT 1988), aff'd, 879
F.2d 838 (Fed. Cir. 1989), the courts apply a broad
interpretation to the term doll, one which we believe,
encompasses the "One on One" and "Team Lineup" products.
The large base and existence of multiple figures does not
preclude these items from being classified as dolls.
With regard to the "Slam Dunk" product which includes a
plastic model of a portion of a basketball court and a
basketball all-star player dunking a ball, we consider the
product a composite good consisting two components. The
player figure is classifiable as a doll under Heading 9502,
HTSUSA, while the plastic basketball court, backboard and rim
would be classifiable under Heading 9503 as an "other toy,"
or alternatively under Heading 3926, HTSUSA, as an other
article of plastic. However, because the headings at issue
refer to part only of the subject product, and according to
GRI 3(a) are to be regarded as equally specific, resort to
GRI 3(b) is necessary. According to GRI 3(b), mixtures and
composite goods consisting of different materials, or made up
of different components, shall be classified as if they
consisted of the material or component
which gives them their essential character. The factor that
determines the essential character of an article varies
amongst different types of articles. It may be the nature of
the material or component, its weight, value, bulk or
quantity, or its role in relation to the use of the goods.
The role that the basketball player figure plays in
relation to the use of the article, strongly supports the
conclusion that the figure imparts the essential character of
the subject merchandise. The basketball player is the focus
of the product. The "Slam Dunk" product is bought and sold
for the player depicted slam dunking the ball. The
replicated basketball court is the stage where the depicted
player carries out his talent. The basketball court plays a
subsidiary function to the depicted player dunking the ball.
Based on these facts, the basketball player figure gives the
subject merchandise its essential character. Accordingly,
the "Slam Dunk" product is classifiable as a doll under
subheading 9502.10.4000, HTSUSA.
HOLDING:
The subject "Starting Lineup" products, "Slam Dunk,"
"One on One" and "Team Lineup," 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