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HQ 082001

February 13, 1990

CLA-2 CO:R:C:G: 082001 DPS


TARIFF NO.: 9502.10.4000, 3926.40.0000

Ned H. Marshak, Esq.
Sharrets, Paley, Carter & Blauvelt, P.C.
Sixty-seven Broad Street
New York, New York 10004

RE: "Starting Lineup" Action Figures

Dear Mr. Marshak:

Your letter of March 21, 1988, on behalf of Kenner- Parker Toys, Inc. (Kenner), requested a binding tariff classification ruling for "Starting Lineup" figures produced in China. Subsequent to that initial submission, a conference was held with Headquarters personnel on October 7, 1988, which was followed by your letter dated October 12, 1988, transmitting numerous exhibits relevant to your presentation. You submitted additional comments in support of your client's position on November 8, 1988 and December 21, 1988. Another conference was held with Headquarters attorneys on August 17, 1989, which was followed by further submissions from your office. Having closely reviewed all submissions and authorities relevant to the issues involved in this case, we are now prepared to rule.


The merchandise consists of over 375 figures representing players from the National Basketball Association (NBA), the National Football League (NFL), and Major League Baseball (MLB). The figures are finely detailed, authentic reproductions of well known sports personalities. The faces of the plastic figures resemble the faces of the athletes they represent. The figures range in height between 3-1/2 and 5 inches, depending upon their positioning. Each player is positioned in a pose that best represents his expertise, and is clad in an appropriate team uniform, which is an accurate representation of the uniforms worn by the teams in each league. The uniforms are part of the molded plastic pieces which comprise the figures. Each figure has one foot attached to a small plastic base. The figures have been formed by assembling five separately molded pieces which include 2 arms, a head, an upper and a lower torso. In the NFL football series, the helmet is not molded to the figure as it is in the baseball series. Rather, it comes in the package with each NFL figure. The figures are articulated, to the extent that the arms, heads and waists of each player can be rotated to simulate live action movement.

Each figure will be sold in an individual blister pack with a "collector's card" setting forth the player's vital statistics. Baseball, football, and basketball "collector's stands" are currently the only accessories available for these figures. Kenner states that the merchandise is designed for children, ages 10-13, and adults. The figures will be sold by Kenner through wholesalers to toy stores, mass merchandisers and nontraditional toy vendors (collectors, hobby and team shops).

Kenner asserts that the subject merchandise is 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, for two basic reasons: (1) the figures are neither commonly nor commercially known as dolls; and (2) the figures are neither children's playthings nor provide the same type of frivolous enjoyment as children's playthings.


Whether the "Starting Lineup" sports figures at issue are properly classifiable as dolls, under subheading 9502.10.4000, HTSUSA; as statuettes of plastics, under subheading 3926.40.0000, HTSUSA; or as other toys, under subheading 9503.49.0020, HTSUSA.


In support of its proposed classification as statuettes of plastic, under subheading 3926.40.0000, HTSUSA, Kenner argues: (1) the figures themselves are finely detailed, authentic reproductions of sports personalities; (2) the figures are attached to plastic bases which are crafted in a manner intended to enhance their display value and collectibility, which results in the figures having a distorted appearance when repositioned; (3) the presence of bases attached to each figure, and the fact that only one realistic pose per figure is possible, prevents the figures from being used by children as playthings and enhances their salability as collectibles; (4) because of their limited play value, and focus on individual sports personalities, the figures will only be purchased by older children (ages 10- 13), and adults, in the same manner as baseball cards and sports posters; (5) "collector's stands," which serve to enhance the figures' ease of display, are the only accessories available for the figures; (6) each figure is sold in an individual blister pack, along with a "Collector's Card" setting forth the player's career statistics, thereby combining the attributes of baseball cards and posters with the figures; (7) the figures will be sold by Kenner through wholesalers to mass merchandisers, toy stores and nontraditional toy vendors (e.g., collectors, hobby and team shops)--thereby competing with baseball cards, sports posters and other articles purchased by avid sports fans, not G.I. Joe or Barbie; and finally, (8) the figures are not marketed, advertised, bought, sold, packaged or in any manner referred to by Kenner or persons in the toy trade as dolls.

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 this type of figure, a realistic representation of a sports figure, with movable arms, head and torso, 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 or adults, but include a wide variety 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. 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, 1039 (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.

Kenner argues that the figures are more akin to statuettes than dolls. However, in order to even consider classifying the items as statuettes, under 3926.40.0000, HTSUSA, pursuant to GRI 1, we must first determine that the subject figures are not classifiable as dolls.

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. 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, or as a more sophisticated display figure for the collector. These qualities merely add to the product's identity as a doll.

In light of the foregoing, it is Customs position that the subject "Starting Lineup" figures are, for tariff purposes, classifiable as dolls. The courts apply a broad interpretation to the term doll, one which we believe encompasses the subject merchandise. Furthermore, the structure of the HTSUSA, and its inclusion of "statuettes and other ornamental articles" of plastic in a "not specifically provided for" heading, prevents us from getting to GRI 3(a) to determine which heading is more specific, because: (1) these figures meet the broad definition of doll advanced by the courts; and (2) the competing provisions, dolls versus statuettes, are not at the same 4-digit level, which, pursuant to GRI 1, requires classification of the item under 9502, HTSUSA, if it meets the definition of doll.


The "Starting Lineup" figures, 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.


John Durant, Director
Commercial Rulings Division

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