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HQ 957739




January 17, 1996

CLA-2 RR:TC:FC 957739 GGD

CATEGORY: CLASSIFICATION

TARIFF NO.: 9502.10.0020

Michael K. Tomenga, Esquire
McKenna & Cuneo
1575 Eye Street, NW.
Washington, D.C. 20005

RE: Reconsideration of DD 801992; Ballerina Figure on Wheeled Vehicle; GRI 3(b)

Dear Mr. Tomenga:

This letter is in response to your request of December 14, 1994, on behalf of Simon Marketing, Inc., for reconsideration of District Ruling Letter (DD) 801992, issued September 26, 1994, concerning the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of a ballerina figure attached to a wheeled vehicle. In DD 801992, Customs classified the article in subheading 9502.10.4000 (now 9502.10.0020), 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." A sample of the article, which is imported from China, was submitted with your request. Subsequent to your request and submission, a conference was held with Headquarters personnel on May 16, 1995. An additional written submission, dated May 26, 1995, has been received and considered. We have reviewed DD 801992 and hereby affirm it.

FACTS:

The sample article consists of a colorfully painted, plastic ballerina figure, molded permanently in a pirouette position and measuring approximately 3 inches in height. By means of an -2-
internal metal shaft, the figure is permanently attached to a round, platform-like vehicle through its top center. The vehicle measures approximately 2-3/4 inches in diameter by 3/4 of an inch in height, and has a trailer hitch and a trailer coupling at opposite ends of the platform (allowing for linkage to other, separately distributed articles). The name "Barbie" is formed in molded plastic, white lettering on one side. The vehicle has 5 wheels, four of which are free-rolling and attached to 2 axles. The 5th wheel is connected to a gear or cam mechanism which connects to the internal metal shaft noted above. When the article is moved along a surface, the 5th wheel turns and causes the entire figure (not its individual parts) to spin or pirouette.

ISSUE:

Whether the merchandise is properly classified in heading 9502, HTSUS, as a doll, or in heading 9503, HTSUS, as other toys.

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). 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 GRI may then be applied. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRI.

Heading 9502, HTSUS, applies to "Dolls representing only human beings and parts and accessories thereof." The EN to heading 9502 indicate that the heading includes not only dolls designed for the amusement of children, but also dolls intended for decorative purposes, or those of a caricature type. The EN further suggest that dolls may contain mechanisms which permit limb, head or eye movements.

Heading 9503, HTSUS, applies to "other toys," i.e., all toys not included in headings 9501 and 9502. Although the term "toy" is not specifically defined in the tariff, the EN to chapter 95, HTSUS, indicate that the chapter covers toys of all kinds whether -3-
designed for the amusement of children or adults. The EN to heading 9503, HTSUS, indicate that the heading covers toy vehicles (other than those of heading 9501).

You assert that several rulings, including Headquarters Ruling Letter (HRL) 954999, issued June 24, 1994, support classification of the article in heading 9503, HTSUS. Among other items in that ruling, this office classified an article of plastics identified as "Aladdin on Magic Carpet." Although it did not appear to have been derived from a single mold, the item was not found to be a composite good (i.e., one consisting of different components), because it consisted of figures (a doll with a toy monkey on its back) and an object (a toy carpet on a free-rolling, wheeled cloud) that were so thoroughly sealed together as to be incomplete in their own right if separated. It was thus our position that the item was one complete article, classifiable pursuant to GRI 1, as a toy within heading 9503.

You also contend that the ballerina figure and vehicle are not classifiable in heading 9502, HTSUS, because the article is "more than" a doll or a doll on a stand, noting that the Court of International Trade (CIT) has summarized the "more than" doctrine as follows:

When an article is in character or function something other than as described by a specific provision in the tariff schedule, either more limited or more diversified, and the difference is significant, it cannot be classified within that provision.

Nestle Refrigerated Food Co. v. United States, 18 CIT ___, Slip Op. 94-118 at 6 (July 20, 1994) (citing Robert Bosch Corp. v. United States, 63 Cust. Ct. 96, 103-04, C.D. 3881 (1969), among other cases). We reject this "more than" analysis as inappropriate and inapplicable to this merchandise. As stated above, classification is governed as a matter of law, by the GRI, not by judicially generated doctrines pertaining to superseded United States tariffs.

Applying the GRI, we find that the article is a composite article that is described by both headings 9502 and 9503, HTSUS. In pertinent part, Explanatory Note IX to GRI 3(b) indicates that: -4-

[f]or 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....

Joining the doll component to the wheeled platform component does not form one complete article classifiable pursuant to GRI 1. The components' attachment, by means of a thin metal shaft, forms a practically inseparable whole which fits the EN description of a composite article. Separating the ballerina figure from the toy vehicle by breaking the shaft would, of course, not be practical, as this would nullify the figure's spinning feature. Unlike the "Aladdin on Magic Carpet" article, however, these components would not be incomplete as individuals. Since the doll and toy together form a composite article which cannot be classified solely by reference to GRI 1, we look to GRI 2(b), which in pertinent part states that:

[t]he classification of goods consisting of more than one material or substance shall be according to the principles of rule 3.

GRI 3(a) directs that the headings are regarded as equally specific when each heading refers to part only of the materials contained in composite goods. Therefore, to determine under which provision the article will be classified, we look to GRI 3(b), which states in pertinent part that:
composite goods...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.

In order to determine the essential character of the composite article, we next view Explanatory Note VIII to GRI 3(b), which provides the following guidance:

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. -5-

At first glance, the ballerina figure's role is to catch a child's attention, while the toy vehicle appears merely to identify the doll as "Barbie" and elevate the item on a platform. The value of the figure's painting in intricate detail is also a significant factor. While the value and role of the platform exceeds that of a mere stationary stand, the function or "role of a...material [the platform] in relation to the use" is clearly subordinate to the doll. The doll is necessarily the centerpiece of the parade float and, as such, it would be contrary to logic to find a platform, even if mechanized, to represent the essential character of the good. Therefore, the ballerina figure on the wheeled vehicle represents the essential character and is properly classified (in 1994) in subheading 9502.10.4000 (now 9502.10.0020), HTSUSA.

HOLDING:

The article identified as the "Ballerina Figure on Wheeled Vehicle" is properly classified (in 1994) in subheading 9502.10.4000 (now 9502.10.0020), 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 applicable duty rate for entries made through December 31, 1994, was 12 percent ad valorem. Under the tariff effective January 1, 1995, the rate has been reduced to free.

DD 801992, issued September 26, 1994, is hereby affirmed.

Sincerely,

John Durant, Director

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