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HQ 085164


October 18, 1990

CLA-2 CO:R:C:G: 085164 DPS

CATEGORY: CLASSIFICATION

TARIFF NO.: 3926.40.0000, 9502.10.4000, 9503.90.6000

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

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