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HQ 954132


February 15, 1994

CLA-2 CO:R:C:F 954132 GGD

CATEGORY: CLASSIFICATION

TARIFF NO.: 9502.10.40

Mr. John M. Peterson
Neville, Peterson & Williams
39 Broadway
New York, New York 10006

RE: Reconsideration of NYRL 884073; Plastic Bottle Shaped to Represent "Prairie Dawn," a "Sesame Street" Character

Dear Mr. Peterson:

This letter is in response to your request of May 6, 1993, on behalf of your client, Softsoap Enterprises, Inc., a Division of Colgate-Palmolive Company, for reconsideration of New York Ruling Letter (NYRL) 884073 (issued April 14, 1993), concerning the tariff classification of a plastic bottle to be imported from China. A sample was submitted with your request. Subsequent to your request and submission, a conference was held with Headquarters personnel on September 16, 1993. An additional written submission, dated September 24, 1993, has been received and considered.

FACTS:

In NYRL 884073, Customs classified the article in subheading 9502.10.40, HTSUSA, the provision for "Dolls representing only human beings and parts and accessories thereof: Dolls, whether or not dressed: Other: Not over 33 cm in height." The sample article is molded in the shape of the female character "Prairie Dawn," from the popular television series "Sesame Street." The bottle portion of the article, which comprises the figure's torso, arms, and legs, measures approximately 6-1/2 inches in height, with a threaded opening at the top onto which a plastic
cap is screwed. The character's head attaches snugly over the plastic cap completing the figure, which then measures approximately nine inches in height. After importation, the article will be filled with either shampoo or liquid soap for retail sale.

ISSUE:

Whether the item is classified in subheading 3923.30.00, HTSUSA, as a bottle; or in subheading 9502.10.40, HTSUSA, as a doll.

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the harmonized system is such that virtually all goods are classified by application of GRI 1, that is, 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 may then be applied. The Explanatory Notes (ENs) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRIs.

Heading 9502, HTSUSA, provides for "Dolls representing only human beings and parts and accessories thereof." The ENs to heading 9502 indicate 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.

Heading 3923, HTSUSA, provides for "Articles for the conveyance or packing of goods...of plastics." The ENs to heading 3923 state that among other items, the heading covers containers such as bottles and flasks.

Since GRI 1 requires that the classification of goods be determined according to the terms of the headings and any relative section or chapter notes, we turn to the legal notes of the tariff schedule. Chapter 95 falls within Section XX, HTSUSA,
to which section there are no legal notes. Chapter 39 falls within Section VII, HTSUSA, to which section there are no notes relevant to this case. However, Note 2(u) to Chapter 39 states that the chapter does not cover articles of Chapter 95 (for example, toys, games, sports equipment). The "Prairie Dawn" article is not a game or item of sports equipment. Although the term "toy" is not defined in the tariff, the EN to Chapter 95 indicates that a toy is an article designed for the amusement of children or adults. If the subject article has been designed for amusement, it is classifiable within Chapter 95 and, by virtue of Note 2(u), not within Chapter 39, HTSUSA.

You submit that Note 2(u) to Chapter 39 simply clarifies the scope of the Chapter without establishing any rule of classification. You further contend that Note 2(u) does not render inoperative the rules of specificity and "principal use" within GRI 3(a) and Additional U.S. Rule of Interpretation 1(a), respectively.

To the extent that use of this imported article is relevant in determining its tariff classification, you essentially assert that the product is not a doll because it is designed, manufactured, tested, marketed, sold, and used only as a container for the packing and conveyance of soaps and shampoos. Referring to the ENs to heading 9502, you maintain that the design attributes and uses of dolls mentioned therein, are entirely inconsistent with the characteristics, features, and utilitarian purposes of this bottle.

Citing Hasbro Industries, Inc. v. United States, 879 F.2d 838 (Fed. Cir. 1989), you note that the United States Court of Appeals for the Federal Circuit broadly interpreted the term "doll" under the former Tariff Schedules of the United States (TSUS). 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. [Emphasis added.]

You maintain that the instant shampoo bottles are neither designed nor used for any purpose set forth by the courts above. On the other hand, you acknowledge that the container's human- like features (licensed by the Children's Television Workshop, owner of the trademarks for "Sesame Street" characters) emit an advertising message that targets children, who are likely to be attracted to the representation of a familiar and beloved figure. You assert that the human-like features are merely characteristic of premium packaging materials. However, it is clear that the "Prairie Dawn" bottle accomplishes the advertising purposes found significant by the courts. While you recognize that the article's familiar and lovable features may provide a basis to retain the empty bottle for decoration or doll-play, you dismiss the likelihood of its holding a child's attention for long, and if such interest were maintained, the decorative and/or amusing uses would be incidental in comparison to the bottle's principal use as a container for liquids.

You also point out that "Prairie Dawn" will be sold with a warning to "keep out of reach of children except under adult supervision," due to the hazards which soap presents to the eyes and sensitive skin if used excessively. You thus contend that the "Prairie Dawn" bottle should be distinguished from the bottles subject to HRL 084302, issued August 29, 1990, because the instant bottle is not designed or intended to be used as a doll or toy. In HRL 084302, this office found that empty bottles designed and shaped as military officers and specialists, and used to contain and market shampoo or bubble bath, were not merely plastic containers. In classifying the items as dolls, we found that they were also used as advertising to entice consumers to purchase the soap, and were intended to be played with by children in the bathtub.

As an example of a human-shaped bottle being classified in a non-doll provision, you refer to Headquarters Ruling Letter (HRL) 046328, issued July 20, 1976. In that ruling, Customs surmised (without a sample) that a porcelain whiskey bottle shaped like a man would be classified under either item 534.11, TSUS, as a porcelain ceramic figurine, or item 534.94, TSUS, as an ornamental article.

You maintain that there has been some dispute concerning whether heading 9502, HTSUSA, is an eo nomine or a use provision. Further emphasizing the relevance of the use to which human figures are put, you recount that if used or associated with a
festive occasion, certain figures (presumably representations of Santa Claus) are classifiable in heading 9505, HTSUSA, as festive articles, and that various others are classifiable as statuettes and other ornamental articles, of plastics.

We are unaware of any dispute as to whether heading 9502, HTSUSA, is an eo nomine provision, for it has long been held to be so. In the previously discussed Russ Berrie & Co. v. United States, 417 F. Supp. 1035 (Cust. Ct. 1976), plaintiff Berrie had insisted that to determine whether the imported articles were dolls or figurines, the United States Customs Court was required to weigh the manner in which the items were actually used. The Court, however, stated that "[i]t is well established in customs jurisprudence that the tariff provision for dolls is not a use provision but an eo nomine provision." Id. at 1039. In response to Russ Berrie's additional argument that the articles could not be considered dolls because they were not merchandised as such, the Court stated that, while merchandising was a factor to be considered in classification, it was not determinative. Id. at 1041.

While we do not suggest that Note 2(u) to Chapter 39 nullifies any Rules of Interpretation, your assertion that Note 2(u) simply functions to clarify the Chapter's scope (as ENs do) is wrong. All goods are classified by application of the GRIs and any relative Section or Chapter Notes. Although "Prairie Dawn" is a plastic article for the conveyance or packing of goods, the item is certainly classifiable in Chapter 95, HTSUSA, within the broad scope of the eo nomine provision for dolls as defined above. The bottle cannot be classified in Chapter 39, because Chapter Note 2(u) excludes articles of Chapter 95. Since the article's classification is determined by application of GRI 1, i.e., according to the terms of the headings and the relative Chapter Note, a GRI 3(a) analysis is not required.

The "Prairie Dawn" article is designed and used not only as a container, but as a happy, familiar, lovable, and decorative plaything, i.e., a doll, which attracts children and effects purchases by adults. It is one of several bottles licensed and designed to represent "Muppet" characters, each of which may be collected. We find the item to be indistinguishable from the plastic soap containers classified as dolls in HRL 084302. Its pleasing features are not nullified by the warning to keep out of children's reach, and it will likely be played with from the time of purchase until long after being emptied.

HOLDING:

The plastic bottle shaped to represent "Prairie Dawn," a "Sesame Street" character, is properly classified in subheading 9502.10.40, HTSUSA, the provision for "Dolls representing only human beings and parts and accessories thereof: Dolls, whether or not dressed: Other: Not over 33 cm in height." The general column one duty rate applicable to this merchandise is 12 percent ad valorem.

NYRL 884073, dated April 14, 1993, is hereby affirmed.

Sincerely,


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