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HQ 965285




March 29, 2002

CLA-2 RR:CR:GC 965285 JGB

CATEGORY: CLASSIFICATION

TARIFF NO.: 9615.11.30

Mr. Michael Roll
Katten Muchin Zavis
525 West Monroe St.
Suite 1600
Chicago, IL 60661-3693

RE: "Diva Starz"™ Musical Comb; Reconsideration of PD H83795

Dear Mr. Roll:

This is in response to your letter of November 20, 2001, requesting reconsideration of Port Ruling Letter (PD) H83795, concerning the classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of an article marketed as "Diva Starz"™ Musical Comb to be distributed as a premium at a chain of fast food restaurants. PD H83795 was issued to you on behalf of The Marketing Store Worldwide LP. A sample of the Musical Comb was submitted with your request along with the separately sold "Diva Starz"™ dolls. During an oral conference on March 28, 2002, you provided information and arguments and there was a discussion of the issues presented.

FACTS:

The musical comb sample is one of eight licensed promotional items to be distributed at fast food restaurants, following the Diva Starz theme. They include a purse on a safety clip, a Diva Starz figure with useable mirror, and other figures designed to be clipped on clothing or displayed on a base. You indicate that the instant article consists of a "plastic Diva Starz figure on a base, with a small plastic non-standard comb protruding from the bottom. When the comb is pressed in toward the base, music plays from an electronic device within the figure, thereby imitating the doll/sound combination of the actual Diva Starz doll." The Divas Starz figure is approximately 2 inches tall and 1¾ inches in width. The comb portion measures 1¾ inch by ½ inch. You state that "one would expect a child to principally use the . . . comb as a toy in its own right. . . and for combing the hair of an actual Diva Starz doll." In PD H83795 it was determined that the article was classifiable as a comb in heading 9615, HTSUS.

ISSUE:

Whether the "Diva Starz"™ Musical Comb is classifiable within heading 9502, HTSUS, as a doll or in heading 9615, HTSUS, as combs, hair-slides and the like.

LAW AND ANALYSIS:

The General Rules of Interpretation (GRIs) taken in their appropriate order provide a framework for classification of merchandise under the HTSUS. Most imported 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 HTSUS by offering guidance in understanding the scope of the headings and GRIs.

The HTSUS provisions under consideration are as follows:

9502: Dolls representing only human beings and parts and accessories thereof.

9615: Combs, hair-slides and the like; . . . and parts thereof.

The musical comb consists of two components, the comb portion and the handle and its base that plays music by means of an electronic chip. In examining the handle which is in the shape of a Diva Starz doll, it is possible that it would be classifiable in heading 9502, if it were not combined with another component, the comb. It is noted that dolls and combs are not normally combined into a single article. However, combs can have all kinds of handles, many of which could be considered novelty. The comb, alone, would be classified in heading 9615, under the provision for combs. Therefore, the articles are not described by a single heading. Under the provisions of GRI 2, “the classification of goods consisting of more than one material or substance shall be according to the principles of rule 3.” GRI 3 provides, in pertinent part, “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:. . . when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods . . . those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.” GRI 3(b) provides that “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, insofar as this criterion is applicable.”

The EN to GRI 3(b) at paragraph (VIII) lists, as factors to help determine the essential character of such goods, the nature of the materials or components, their bulk, quantity, weight or value, and the role of a constituent material in relation to the use of the goods.

In this instance, the doll portion does not rise to the level of being considered as a doll for tariff purposes, because it does not stand on its own. It is a mere representation or memento to the "real" doll on which it is modeled. It forms more of an imitative article designed along the theme of the Diva Starz. One would imagine that having the musical comb would be meaningful only if one already possessed the "real" Diva Starz doll of that name. If the child did not have the one by that name, the possession of the musical comb would be an incentive to request the parent to buy it. However, the presence of the "doll" portion in this case serves principally as a handle for the comb. The comb appears to be designed to be used by the child in combing her hair with the accompaniment of the music associated with the particular doll model, be it Nikki, Miranda, Alexa, or Tia. The doll's hair is certainly a prominent part of the play activity with the doll and to that end, the "real" doll's owner is provided with a hairbrush to groom the doll. The musical comb under consideration in this decision is distinguished from the hairbrush in that the musical comb is entirely out of scale for the doll and is larger and consequently more suitable in scale to the little girl that would typically find the doll an attractive plaything.

We find the comb to be the primary component of the composite good in terms of the role of the comb in relation to the use of the whole article. Consequently, the comb portion presents the essential character of the good. Because the comb component supplies the essential character of the good, the classification of the comb will govern the classification of the whole good. This conclusion is noted in the context of a substantial amount of play activity associated with the "real" Diva Starz doll that the handle of the comb is meant to resemble. Customs does not regard the activity of combing one's hair as associated with playing with or admiring a doll.

You argue that note 1(l) to Chapter 96, HTSUS, precludes classification of the article in chapter 96, HTSUS, because the article is classifiable in chapter 95, HTSUS. We disagree with your analysis and find it inapplicable, because this article fails to meet the standards of chapter 95 as a doll. It cannot be played with and does not stand up. The "doll" portion functions as a handle to a comb. It is not and can never be a doll; therefore, classification in chapter 95 cannot be considered as a viable choice. If two headings describe the same article and classification could be supported in both, an exclusionary note will eliminate one of the headings from consideration.

You further argue that the decision in Minnetonka Brands v. United States, Slip Op. 00-86 (U.S. Ct. Int'l Trade 2000) compels classification of the musical comb as a toy of heading 9503, HTSUS. Insofar as this argument is inconsistent with the earlier argument that the article is a doll of heading 9502, HTSUS, it is difficult to determine which heading you find supportable by law. The article under consideration is distinguishable from the shampoo bottle in that the court found that the relevant factor in purchasing the shampoo was the shape of the bottle and its resemblance to a Sesame Street toy character. In Minnetonka, after the shampoo was consumed, the toy-like character remained and could still be played with. In the instant matter, neither the comb nor the musical handle is "used up" like the shampoo. The fact remains that the merchandise in Minnetonka is distinguishable from the instant article. As to whether a Carborundum analysis is appropriate, the result would be anomalous and absurd. See United States v. Carborundum Co., 63 C.C.P.A. 98, 536 F.2d 373 (1976). The factors under consideration in Carborundum appear to be inapplicable in those circumstances when the article is not sold and is not in commerce. It is obvious that in some circumstances, such as with free promotional articles, Carborundum, has limited applicability.

Your arguments regarding other decisions by Customs involving merchandise primarily for children are unpersuasive. The "limited use" argument applies to toys and not dolls. That being said, the comb portion of the musical comb appears to be unsuitable for the doll that it is associated with, but it does appear to be appropriate for a young girl. This sort of limited use is entirely appropriate in a comb designed for little girls, but such limitation would not turn the article into a toy.

HOLDING:

The "Diva Starz"™ Musical Comb is properly classified in subheading 9615.11.30, HTSUS, the provision for "Combs, hairslides and the like;. . . and parts thereof: Combs, hair-slides and the like: Of hard rubber or plastics: Combs: Valued over $4.50 per gross: Other."

PD H83795 is affirmed.

Sincerely,

John Durant, Director
Commercial Rulings Division


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