CLA-2 OT:RR:CTF:TCM H149977 EGJ
Kenneth W. Long Jr., Esq.
Sunrise World Enterprises, LLC
107 Glen Trail
Woodstock, GA 30188
RE: Revocation of NY N134676, NY H81777, NY H82260, NY I87007, and NY J81101; Tariff Classification of Doll Pens
Dear Mr. Long:
This is in reference to your letter dated February 14, 2011, in which you requested reconsideration of New York Ruling Letter (NY) N134676, dated December 20, 2010, issued to you concerning the tariff classification of the Big Shooz Two Piece Desk Set (the doll pen). In NY N134676, U.S. Customs and Border Protection (CBP) classified the doll pen in subheading 9608.10.00, HTSUS, which provides for ball point pens. We have reviewed NY N134676 and find it to be in error. For the reasons set forth below, we hereby revoke NY N134676 and four other rulings with substantially similar merchandise: NY H81777, dated June 19, 2001; NY H82260, dated June 19, 2001; NY I87007, dated October 11, 2002, and NY J81101, dated February 12, 2003.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625(c)(1)), as amended by section 623 of Title VI, notice of the proposed action was published on June 24, 2015, in the Customs Bulletin, Vol. 49, No. 25. No comments were received in response to this notice.
FACTS:
In NY N134676, the subject merchandise is described as follows:
The submitted sample is identified as a BigShooz 2-Piece Desk Set. This item is a ball point pen in which the body of the pen is in the shape and form of a football player made of molded plastic. The top of the football player figure has a removable helmet. There is no face under the helmet but only a plastic extension over which the helmet is fitted. The figure has two articulated arms, one on each side of the figure, and has a painted red jersey with the number 13 printed on it. The bottom portion of the figure has painted white pants in which there is a vertical indented line that is designed to distinguish two legs. At the very bottom is a silver tip through which the writing end of the ball point pen cartridge extends.
The item includes a separate base for the pen, which is designed to appear like very large shoes for the football player. The base is one piece in which the shoes are attached in the middle to a section that has an aperture at the top. The aperture is designed to receive the writing end of the football player pen so that the pen and therefore the football player figure can stand upright on a desk. The entire item measures approximately 6½” in height.
In your reconsideration request, you provided additional information regarding the doll pen. The figure is made of plastic and it has an ink cartridge inserted into it. The ink cartridge is shorter than a standard cartridge in order to fit inside the figure, and no refills of the ink cartridge are sold.
The doll pen wears a college football uniform, which is licensed by the various institutions. The intended market is college alumni, current students and fans of the sports team. Given the quality of the product and the authentic collegiate decoration, you expect that the consumer will consider this as an item of memorabilia and will not discard the item when the ink cartridge runs out. The doll pen general sells for a retail price of $19.95. Pictures of the doll pen are provided below:
ISSUE:
What is the tariff classification of the doll pen?
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. Under GRI 6, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to GRIs 1 through 5.
GRI 3(b) provides as follows:
When, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:
…
(b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable …
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The HTSUS headings and subheadings under consideration are the following:
9503.00.00 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:
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9608 Ball point pens; felt tipped and other porous-tipped pens and markers; fountain pens, stylograph pens and other pens; duplicating styli; propelling or sliding pencils (for example, mechanical pencils); pen-holders, pencil-holders and similar holders; parts (including caps and clips) of the foregoing articles, other than those of heading 9609:
9608.10.00 Ball point pens.
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Note 1(l) to Chapter 96 provides that:
1. This chapter does not cover:
(l) Articles of Chapter 95 (toys, games, sports equipment).
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The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff at the international level. While neither legally binding nor 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 at the international level. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The EN to GRI 3(b) states, in pertinent part:
RULE 3 (b)
(VI) This second method relates only to:
(i) Mixtures.
(ii) Composite goods consisting of different materials.
(iii) Composite goods consisting of different components.
(iv) Goods put up in sets for retail sales.
It applies only if Rule 3 (a) fails.
(VII) In all these cases the goods are to be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.
(VIII) The factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.
(IX) For the purposes of this Rule, composite goods made up of different components shall be taken to mean not only those in which the components are attached to each other to form a practically inseparable whole but also those with separable components, provided these components are adapted one to the other and are mutually complementary and that together they form a whole which would not normally be offered for sale in separate parts.
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EN 95.03(C) provides, in pertinent part, as follows:
This heading covers:
(C) Dolls.
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.
Dolls are usually made of rubber, plastics, textile materials, wax, ceramics, wood, paperboard, papier maché 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.
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Heading 9503, HTSUS, covers dolls and heading 9608, HTSUS, covers pens. The pen’s exterior is a doll because it is a plastic figure of a college football player. According to EN 95.03(C), the heading includes dolls that are used for decoration, such as mascot dolls and caricature dolls. The instant doll pen is both a college mascot and a caricature doll, as its feet are oversized to act as a pen stand. However, the doll pen’s interior ink cartridge and ball point tip form a complete pen inside of the doll. As such, neither heading 9503, HTSUS, nor heading 9608, HTSUS, describe the doll pen in its entirety. Each heading only refers to one component of the doll pen. As such, we must turn to GRI 3(b) to determine which component imparts the pen’s essential character.
GRI 3(b) states that mixtures, composite goods and retail sets shall be classified as if they consisted of the component which gives them their essential character. In order to identify a composite good’s essential character, the U.S. Court of International Trade (CIT) has applied the factors listed in the ENs to GRI 3(b), which are “the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.” The Home Depot v. United States, 427 F. Supp. 2d 1278, 1293 (Ct. Int’l Trade 2006). With regard to the role of the component which imparts the essential character, the court has stated it is “that which is indispensable to the structure, core or condition [of the retail set].” Id. citing A.N. Deringer, Inc. v. United States, 66 Cust. Ct. 378, 383 (1971).
Applying the aforementioned factors, the doll is bulkier and weighs more than the pen. We do not have any information relating to the separate values of the doll and pen components. However, you have provided us with information relating to the role of the each component. You stated that the ink cartridge is smaller than a standard ball point pen ink cartridge. You also stated that no replacement ink cartridges are available for the doll pen. You noted that the targeted consumers are fans of the college football team, who will treat the doll pen as memorabilia. You noted that college fans will not throw away the pen once the ink runs out, but will keep the doll pen on display as a decorative item. As such, we find that the doll plays a much larger role than the pen.
Further, CBP has classified other pens encased inside of dolls as dolls. See, e.g. NY K82148, dated January 6, 2004 (Barbie™ Fashion Doll Pens were classified as dolls), and NY L81741, dated January 21, 2005 (Strawberry Shortcake™ Mini Doll Pen and Disney© Princess Doll Pens were classified as dolls). For all of these reasons, we find that the doll imparts the essential character to the doll pen. As such, the Big Shooz doll pen is properly classified as a doll of heading 9503, HTSUS.
HOLDING:
By operation of GRI 3(b), the Big Shooz Two Piece Desk Set is classified in subheading 9503.00.00, which provides, in pertinent part, for “[D]olls, other toys.” The 2015 column one, general rate of duty is free.
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.
EFFECT ON OTHER RULINGS:
NY N134676, dated December 20, 2010; NY H81777, dated June 19, 2001; NY H82260, dated June 19, 2001; NY I87007, dated October 11, 2002; and NY J81101, dated February 12, 2003, are hereby revoked.
In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division