|
Algumas pessoas acreditam que a Classificação de
Mercadorias só é exigida e cobrada pela Fiscalização Aduaneira Brasileira.
Todavia, isto é um engano e para provar minha afirmativa segue uma interessante
sentença de tribunal americano sobre a classificação de bonecos no formato de
figura humana e simples brinquedo, enviada pelo Dr. Luis Guilherme, ativo
tributarista (a fonte original está citada no rodapé), a quem desde
já agradeço.
Para preservar toda a pureza da sentença eu a deixei
escrita em seu idioma original. Leiam e vejam que Classificação de Mercadorias é
cobrada em todos os países (cobrada na importação; quando se exporta a
preocupação é saber se a mercadoria foi embora, saiu do país).Por fim noto que
eu grifei para destacar
248 F.Supp.2d 1234 (2003) - TOY BIZ, INC., Plaintiff,
v. UNITED STATES,
Defendant.
United States Court of International Trade.
January 3,
2003.
1239*1239 Singer & Singh, New York City (Sherry L. Singer, Indie
K. Singh), for Plaintiff.
Robert D. McCallum, Jr., Assistant Attorney General, United States
Department of Justice; John J. Mahon, Acting Attorney in Charge, International
Trade Field Office; (Mikki Graves Walser), Civil Division, United States
Department of Justice, Commercial Litigation Branch; Beth C. Brotman, Attorney,
Office of Assistant Chief Counsel, International Trade Litigation, United States
Customs Service, for Defendant, of counsel.
Before: Judge JUDITH M. BARZILAY.
OPINION
BARZILAY, Judge.
I. INTRODUCTION
This is the fourth and final opinion for this Court in a case
involving the classification of dozens of action figures from various Marvel
Comics series. See Toy Biz, Inc. v.
United States, 26 CIT ___, ___, 219 F.Supp.2d 1289 (2002) ("Toy Biz III"); 25 CIT ___, ___, 132 F.Supp.2d 17 (2001)
("Toy Biz II");
2A CIT ___, ___, 123 F.Supp.2d 646 (2000) ("Toy Biz I"). The legal issue
presented in this case involves the construction of the "dolls" provision vis a vis the "other toys"
provision. This issue was an historically contentious one [1] under the former classification scheme, the Tariff
Schedules of the United States ("TSUS"), and this case presents an issue of
first impression[2] under the Harmonized
Tariff Schedule of the United States ("HTSUS") adopted by the United States in
1989. This court holds that, first, the change in language from the TSUS to the
HTSUS with respect to the "dolls" and "other toys" provisions reflects a change
in law; second, to be properly classifiable as a "doll" under the HTSUS, a toy
figure must clearly represent a human being; third, the action figure playthings
at issue here are not properly classifiable as "dolls" under the HTSUS by virtue
of various non-human characteristics they exhibit; and finally, the item
"Jumpsie" is properly classifiable as a "doll" under the
HTSUS.
II. BACKGROUND
Plaintiff Toy Biz, Inc. ("Toy Biz") brings this action to challenge
the tariff classification by the United States Customs Service ("Customs" or
"Defendant") of various items imported from China and entered at the ports of
Seattle and Los Angeles in 1994.[3] The items are action
1240*1240 figures from various Marvel Comics series, including the "X-Men,"
"Spider-Man," and the "Fantastic Four," and an additional item called "Jumpsie,"
which is not an action figure. The items are packaged in boxes or blister packs
attached to colorful cardboard backing covered with printed illustrations and
writing. The packaging of a number of items includes small accessories, such as
weapons and other equipment.[4] Customs
classified the items as "Dolls representing only human beings and parts and
accessories thereof: Dolls whether or not dressed: Other: Not over 33 cm in
height," under subheading 9502.10.40 of the HTSUS (1994), dutiable at 12% ad valorem.[5] Toy Biz contends that the action figures at issue
are properly classifiable as "Toys representing animals or other non-human
creatures (for example, robots and monsters) and parts and accessories thereof:
Other," under subheading 9503.49.00, HTSUS (1994),[6] dutiable at 6.8% ad valorem.[7] Toy Biz further contends that "Jumpsie" should be
classified as a "toy set," under HTSUS (1994) subheading 9503.70.80, dutiable at
6.8% ad valorem.[8]
Customs further classified the trading cards, included in the
packaging of the action figures and which picture and describe other action
figures (other than the one with which they are included), separately under
HTSUS (1994) subheading 4911.99-6000 as "Other printed matter, including printed
pictures and photographs'. Other: Other: Other: Printed on paper in whole or in
part by a lithographic process," dutiable at 0.4% ad valorem.[9] Plaintiff disputes the separate classification of
the trading cards. See PI. `s Mem. in
Supp. of 1241*1241 Mot. for
Summ. J. at 15 ("Pl.'s
Br."). Both parties have stipulated to the material facts and have filed
motions for summary judgment pursuant to USCIT R. 56.[10] The court has jurisdiction pursuant to 28 U.S.C. §
1581(a).
II. SUMMARY JUDGMENT AND STANDARD OF
REVIEW
This court may decide classification cases on summary judgment when
it is appropriate. See
Bausch & Lomb, Inc. v. United States, 148 F.3d 1363, 1365 (Fed. Cir.1998); Ero Indus., Inc. v.
United States, 24 CIT ___, ___, 118 F.Supp.2d 1356, 1359 (2000). "The
fact that both parties have moved for summary judgment does not mean that the
court must grant judgment as a matter of law for one side or the other; summary
judgment in favor of either party is not proper if disputes remain as to
material facts." Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1391 (Fed.Cir.1987) (citation omitted). Summary judgment is appropriate "if the
pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a judgment as a
matter of law." USCIT R. 56(c). "It is the function of the court to determine
whether there are factual issues that are material to resolution of the action."
Ero Indus., 118 F.Supp.2d at 1359 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265
(1986) and Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202
(1986)). In classification actions, "summary judgment is appropriate
when there is no genuine dispute as to ... what the merchandise is ... or as to
its use." Id. at 1359-60.
When there are no factual issues in the case, the "propriety of the summary
judgment turns on the proper construction of the HTSUS, which is a question of
law," subject to de novo
review.[11] Clarendon Marketing, Inc. v. United States, 144 F.3d 1464, 1466 (Fed. Cir.1998); Nat'l Advanced Sys. v.
United States, 26 F.3d 1107, 1109 (Fed.Cir.1994); see also 28 U.S.C. § 2640 (1994).
Here, the parties cross-moved for summary judgment, stipulated to material
facts, and submitted affidavits.[12] No
genuine issues 1242*1242 of material fact remain as to the nature of the
merchandise or its use. The items at issue are various playthings for
children, classifiable either as "dolls" or "other toys" under the HTSUS.
The only remaining question is the proper scope of those classification
provisions of the HTSUS, which is a question of law. Accordingly, a grant of
summary judgment for either side, based on pleadings and supporting documents,
is appropriate.
III. DISCUSSION
"The proper classification of merchandise entering the United States
is directed by the General Rules of Interpretation (`GRIs') of the HTSUS and the
Additional United States Rules of Interpretation." Orlando Food Corp. v. United States,
140 F.3d 1437, 1439 (Fed.Cir. 1998). "The HTSUS scheme is organized by headings,
each of which has one or more subheadings; the headings set forth general
categories of merchandise, and the subheadings provide a more particularized
segregation of the goods within each category." Id. Under GRI 1, "[a] classification
analysis begins, as it must, with the language of the headings." Id. at 1440. GRI 1 states in
pertinent part "classification shall be determined according to the terms of the
headings and any relative section or chapter notes." "[T]he other GRI provisions
may be consulted only if headings and notes `do not otherwise require' a
particular classification." Mita Copystar Am. v. United States, 160 F.3d 710, 712 (Fed.Cir.1998) (quoting GRI 1). If a subheading is at issue, "[f]or legal purposes,
the classification of goods in the subheadings of a heading shall be determined
according to the terms of those subheadings and any related subheading notes
and, mutatis mutandis, to" the
other GRIs. GRI 6, HTSUS.
The "proper scope of a classification in the HTSUS is an issue of
statutory interpretation." Bauerhin
Techs. Ltd. P'ship v. United States, 110 F.3d 774, 776 (Fed.Cir.1997).
"It is a general rule of statutory construction that where Congress has clearly
stated its intent in the language of the statute, a court should not inquire
further into the meaning of the statute." Pillowtex Corp. v. United States, 171
F.3d 1370, 1373 (Fed.Cir.1999) (citation omitted). If "statutory language of [a]
tariff classification is ambiguous," the court may use various "aids in
construing the statute and disclosing legislative intent." Celestaire, Inc. v. United States, 20
CIT 619, 623, 928 F.Supp. 1174, 1178 (1996) (citation omitted). Among such aids
are "standard canons of statutory construction [or] legislative ratification of
prior judicial construction." Id. (citations omitted).
Additionally, the court may construe HTSUS terms "according to their common and
commercial meaning" if such construction would not contravene legislative
intent. JVC Co. of Am., Div. of U.S. JVC Corp. v. United States, 234 F.3d 1348, 1352 (Fed.Cir.2000) (citation omitted); see
also John S. James A/C The Consol. Packaging Corp. v. United States, 48
C.C.P.A. 75, 77 (1961) ("it is incumbent upon [the court] to assume that
Congress attributed to the words their common meaning unless the evidence or
some other factor indicates otherwise"). "A court may [also] rely 1243*1243 upon
its own understanding of the terms used, lexicographic and scientific
authorities, dictionaries, and other reliable information." JVC, 234 F.3d at 1352. Finally, "a
court may refer to the Explanatory Notes of a tariff subheading, which do not
constitute controlling legislative history but nonetheless are intended to
clarify the scope of HTSUS subheadings and to offerguidance in interpreting
subheadings." Mita Copystar Am. v.
United States, 21 F.3d 1079, 1082 (Fed.Cir.1994) (citation
omitted).
Here, Customs classified the items under HTSUS heading 9502,
"Dolls representing only human beings and parts and accessories thereof." Basing
its contention on the wording of HTSUS 9502, Toy Biz argues that to be
classifiable as a "doll," the "item must represent only, i.e., exclusively, a human
being." PI. `s Br. at 5
(emphasis in original). Toy Biz points to the tentacles, claws, wings or other
nonhuman features that a number of the items at issue possesses. Id. Toy Biz thus concludes that the
items at issue are not classifiable as "dolls" because "the figures represent
creatures other than humans, and possess features characteristic of nonhumans."
Id.
Toy Biz next argues that the items are properly classifiable as "Toys
representing animals or non-human creatures (for example, robots and monsters)"
under subheading 9503.49.00, by virtue of possessing non-human features. See id. at 6-7. Toy Biz observes that
the Explanatory Note 95.03(A)(1) provides that "other toys" under heading 9503
include "[t]oys representing animals or non-human creatures even if possessing
predominantly human physical characteristics (e.g.angels, robots, devils,
monsters)." Id. at 5-6.
According to Toy Biz, the Explanatory Notes thus add to the list of creatures
that should be considered non-human (angels and devils) and emphasize that the
item should be considered non-human even if predominantly human in physical
appearance. Toy Biz would frame the classification issue as "not whether the
character has some human features, or even whether the character resembles a
human being," but "whether the figure represents only a human being." Id. at 7 (emphasis in
original).
Customs answers this argument by first observing that "[h]eading 9502
is an eo nomine provision for
`dolls.' " Def.'s Mem. in Supp. of
Cross-Mot. for Summ. J. and in Opp. to Pl.'s Mot. for Summ. J. at 18
("Def.'s Br."). Customs
explains that "[i]n the absence of contrary legislative intent, an eo nomine provision includes all
forms of the article." Id. at
18-19 (emphasis in the original) (citing Nootka Packing Co. v. United States,
22 C.C.P.A. 464 (1935) and Hasbro Indus., Inc. v. United States, 879 F.2d 838 (Fed. Cir.1989)).[13] According to Customs, "[h]eading 9502 is, therefore, an eo nomine provision covering all
forms of dolls which represent human beings." Def. `s Br. at 19 (citation omitted).
In explaining its interpretation of "dolls," Customs relies primarily on case
law that in turn relied on dictionary definitions for the term "doll." Id, For example, the Court in
Hasbro Indus., Inc. v. United States, found that "the dictionaries referred to by the Court invariably
defme[d] the word doll as a representation of a human being used as a child's
plaything" and declared that "[t]his, in itself, is virtually decisive." 12 CIT
983, 988, 703 F.Supp. 941, 945 (1988), aff'd, 879 F.2d 838 (Fed.Cir.1989). Customs further observes that so far "judicial decisions in
1244*1244 terpreting the term `dolls,' without exception, have broadly construed
the scope of that term to include a broad range of physical characteristics and
a wide variety of uses." Def.'s
Br. at 20 (citations omitted). Thus, since the figures at issue all have
"the appearance of human beings" by virtue of having "a head, mouth, eyes, nose,
hair, arms, torso, breasts, muscles, and [with one exception] legs and feet;"
are "noticeably lifelike and constructed in a manner which permits an impressive
range/simulation of human movement;" are "dressed as human beings and equipped
with weapons and accessories in a manner associated with actual or fictional
warfare;" and finally possess "such human characteristics as gender, race,
physical impediment/handicap, and nationality," [14] according to Customs, they fall under "the broad definition of the tariff term
`dolls.' " Id. at 21-22
(emphasis added). Finally, Customs argues that the few non-human characteristics
the figures possess, such as claws or robotic arms, "fall far short of
transforming [these figures] into something other than the human beings which
they represent." Id. at 23.[15]
The construction of the HTSUS provision "dolls" vis a vis the HTSUS provision of
"other toys" is a case of first impression.[16] In defending its classification of the figures at
issue as "dolls," Customs primarily relies on the case law that interpreted the
classification of "dolls" under the TSUS and previous case law. See, e.g., Hasbro, 879 F.2d at 838 (classification as "dolls" under TSUS); Am. Imp. Co. v. United States, 22
Cust.Ct. 51 (1949) (classification as "dolls" under paragraph 1513 of Tariff Act
of 1930). Prior to the HTSUS, the tariff classification for "dolls" had always
been broadly construed. See Russ
Berrie & Co., Inc. v. United States, 76 Cust.Ct. 218, 417 F.Supp.
1035, 1039-40 (Cust.Ct.1976) (listing items previously classified as dolls
including "dolls for display or advertising purposes, and dolls sold as gag
items, bar gadgets, adult novelties, etc., ... [s]mall woven rush figures
1245*1245 made in Mexico, consisting of a horse and rider and a figure of a
woman made of straw, [a dancing female figure affixed to] a music box, [and a]
papier-mache Hawaiian hula girl [used in] a car as a decorative item")
(citations omitted); see also R. Dakin
& Co. v. United States, 14 CIT 797, 798, 752 F.Supp. 483, 484 (1990)
(holding that "a puppet-like toy made up of a doll head and hands attached to a
sleeve of bunting" is properly classified as "doll" under TSUS); Hasbro, 879 F.2d at 841 (affirming CIT holding that G.I. Joe action figures are "dolls");
Wregg Imps. v. United States,
10 CIT 679, 682, 1986 WL 11880 (1986) (affirming Customs classification of
"matreshkas" as "dolls"). Previous judicial and Customs determinations
interpreting TSUS provisions are not "dispositive" in interpreting the HTSUS
provisions. H.R. Conf. Rep. No. 100-576, at 549 (1988), reprinted in 1988 U.S.C.C.A.N. 1548,
1582. However, "on a case-by-case basis prior decisions should be considered
instructive in interpreting the [HTSUS], particularly where the nomenclature
previously interpreted in those decisions remains unchanged and no dissimilar
interpretation is required by the text of the [HTSUS]." Id. at
549-50.
The TSUS "dolls" classification heading reads "Dolls, and parts of
dolls including doll clothing." [17] TSUS
Schedule 7, Part 5, Subpart E (1987). HTSUS heading 9502 reads "Dolls representing only human beings and
parts and accessories thereof (emphasis added). HTSUS heading 9502 thus
represents a definite change in the nomenclature of the "dolls" provision from
the TSUS. It is a wellestablished maxim in statutory construction that, if there
is a change in the statutory language, the court is to assume that "the change
was not made by accident, but that it was intentional, and that by making such a
change in expression Congress used the term in a different sense from that in
which the former expression was used." Stroheim & Romann v. United
States, 13 Ct. Cust.App. 489, 493 (1926). "This rule is, however, not
absolute, and does not compel the conclusion that a change in meaning was
meant." Id. "It merely indicates such an intention." Id. (emphasis in the original). Here,
the change in the language of the tariff classifications at a minimum indicates
an intention to change their meanings. Accordingly, this court observes that
pre-HTSUS interpretations of the "dolls" provision (by the courts and Customs)
can no longer direct the interpretation of HTSUS heading 9502. Such
pre-HTSUS interpretations may only inform the court's interpretation of HTSUS
heading 9502.
The first issue before the court is whether the addition of the
clause "representing only human beings" in the HTSUS constricts the "dolls"
tariff classification previously interpreted broadly.[18] The second issue before the court is whether, if
the 1246*1246 "dolls" provision is indeed narrower, the action figures in
question would nevertheless be encompassed by HTSUS heading 9502 instead of the
alternative HTSUS heading 9503 for "other toys." Only after determining the
proper heading may the court inquire into the propriety of HTSUS subheading
9503.49.00 "Toys representing animals or non-human creatures (for example,
robots and monsters) and parts and accessories thereof as the tariff
classification of the items in question. See GRI 1 & 6,
HTSUS.
The court first recognizes that the 9503 "other toys" provision of
the HTSUS is a residual or a default provision. Both the 9502 "dolls" and the
9503 "other toys" provisions appear in Chapter 95 of the HTSUS, titled "Toys,
Games and Sports Equipment; Parts and Accessories Thereof." The first heading,
9501, is reserved for "[w]heeled toys designed to be ridden by children;"
heading 9502, for "dolls;" and heading 9503, for "other toys." The Explanatory
Note 95.03 to heading 9503 explicitly states that the "other toys" provision
includes all toys not included
in 9501 and 9502. Thus, heading 9503 is a default provision intended to
encompass all toys that are not "wheeled toys" or "dolls." Accordingly, when the
choice is between the "dolls" and "other toys" provisions of the HTSUS, the
construction of the provisions must start with that of "dolls."[19] The construction of the "dolls" provision may
not, however, render either the "other toys" provision or any other provision of
the HTSUS meaningless and lead to ambiguous and contradictory results.[20] It is therefore necessary to interpret the
"dolls" provision in the context of the entire Chapter 95 and especially in
relation to the "other toys" provision.
The task of the court is to ascertain which meaning the words
"representing" and "only" were intended to carry in the phrase "dolls
representing only human beings" in heading 9502 of the HTSUS.[21] The question regarding the word "only" is
answered more readily. The court agrees with Toy Biz that one of the primary
meanings of the term "only" is "exclusively." The Oxford English Dictionary
("OED") provides referring to the adverb "only": "1. As a single or solitary
thing or fact; no one or nothing more or else than; nothing but; alone; solely,
merely, exclusively." 10 OED at
818 (2d ed.1989) (emphasis added). The OED further provides that "only" limits
the word it precedes, for example, in a way that produces the connotation "as
opposed to any other." See id.
(emphasis in the original). Therefore, the heading "dolls representing only
human 1247*1247 beings" can be read as "dolls representing human beings, as
opposed to any other
beings."
The meaning of the term "representing" in heading 9502 is harder to
ascertain. Toy Biz urges that "to represent" in this context means more (or
other) than "to resemble." See Pl.'s
Br. at 7.[22] The court agrees. The
reason is multi-fold. First, consulting the OED, the court finds that "to
resemble" is only one of the many possible meanings of "to represent." 13 OED at
657-58. In the senses more pertinent to our purpose here, "to represent" may,
for example, mean "to show, exhibit, or display to the eye," "to portray,
depict, delineate," "to symbolize, to serve as a visible or concrete embodiment
of," "to stand for or in place of," "to be the figure or image of," "to take or
fill the place of," or "to serve as a specimen or example of a person or a
thing. Id. Second, given the
entire context of the HTSUS, "to represent" in "dolls representing only human
beings" must mean something more than (or other than) "to resemble." In other
words, one cannot read the "dolls" provision as meaning exclusively "dolls resembling human beings." This
reading of the "dolls" provision would create ambiguity and conflict with the
"other toys" provision of the HTSUS. One of the subheadings at issue here reads
"Toys representing animals or non-human creatures (for example, robots and
monsters)." The accompanying Explanatory Note 95.03, HTSUS, further explains
that "[t]hese include: (1) Toys representing animals or non-human creatures
even if possessing predominantly human
physical characteristics" (emphasis added). Thus, the "other toys"
provision clearly encompasses toys that possess predominantly human physical
characteristics, i.e. resemble human beings. If "to represent" in "dolls
representing only human beings" meant exclusively "to resemble," a toy that
merely resembled a human being would be prima facie classifiable under both
the "dolls" and "other toys" provisions. The HTSUS scheme, however, prevents
this interpretation. As explained above, see supra note 19 and accompanying
text, the "dolls" and the "other toys" provisions are mutually exclusive; and an
item cannot be classified as both a "doll" and "other
toy."
The court next considers what the effect these interpretations of
"only" and "to represent" have on the "dolls" provision that reads "dolls
representing only human beings." To be classified as a "doll" under the HTSUS, a
toy needs to be an "embodiment" of a human being or to serve as an "example" of
a human being. This condition is more restrictive than merely to resemble a
human being. The word "only" further restricts the provision because it will not
allow the representation of any being other than a human being to be classified
as a "doll." The court thus concludes that by excluding toys that do not
exclusively represent human beings (however much they resemble human beings),
the HTSUS "dolls" provision has indeed narrowed the scope of what can be
classified as "dolls" when compared with the TSUS "dolls" provision which simply
read "Dolls, and parts of dolls including doll clothing," and was not restricted
by any qualifiers.[23]
1248*1248 The court next considers whether the items at issue here
are properly classifiable as "dolls" under the HTSUS. The action figures at
issue[24] are organized by Toy Biz in
various assortments. The figures in assortments numbered 4900 I, 4900 J, 4900 K,
4900 F, 4900 G, and 4900 H are five-inch poseable (or capable of standing erect
with movable joints) plastic figures, collectively referred to "X-Men" action
figures.[25] See Stipulation (Oct. 18, 2000).
Similarly, the figures in assortments 4950 E, 4950 F, and 4950 C are five-inches
tall, made of plastic with movable joints, and are referred to as "Force" action
figures. Assortments 49500 and 49710 in turn consist of ten-inch poseable
plastic action figures, referred to also as "X-Force" or "X-Men." In addition,
there are "X-Men Steel Mutants" that come in assortments 49210 and 49220 and are
replicas of figures found in other "Men" or "X-Force" assortments. The "Men
Steel Mutants" are packaged in pairs; as, for example, "Professor X vs.
Magneto." [26] These figures are
approximately 1249*1249 two and a half inches tall, made of die-cast metal,
fully painted, and again have movable joints. Also packaged in pairs (with an
additional smaller figure included) are the so-called "Kay-Bee Collectors
Editions," assortments 49605-1 and 49605-11, which consist of five-inch "X-Men"
figures already found in other assortments.[27] Included among the "X-Men" figures is "Senyaka,"
Toy Biz Item No. 49389, which is again a five-inch poseable plastic figure.
Finally, a class of figures referred to as "X-Men Projectors" (assortment no.
49110) are seven-inch replicas of the "Men" figures of "Wolverine," "Magneto,"
and "Cyclops" included in other assortments with the addition of a mechanical
"projector" housed in the body of the figure.[28] The "X-Men Projectors" come with "film disks" with strips of frames
from the "TV Show" which can be projected onto a wall from the body of the
figure.[29] All these "X-Men" (or "X-Force") figures manifest human
characteristics at varying degrees. Some clearly resemble human beings, some
clearly not. Most are on the borderline in that they exhibit a mix of human and
non-human characteristics, such as arms and legs alongside non-human features
(for example, one of the more popular figures of the series "Wolverine" has
long, sharp-looking claws grafted onto his hands that come out from under his
skin along with wolf-like hair and ears).
Whatever the degree is to which they resemble human beings, the court
finds that these action figures do not represent human beings and are therefore
not properly classifiable as "dolls" under HTSUS heading 9502. The court bases
its finding on at least three observations. First, most of the figures at issue
exhibit at least one non-human characteristic. The court does not agree with
Customs that the few non-human characteristics the figures possess, such as
claws or robotic eyes, "fall far short of transforming [these figures] into
something other than the human beings which they represent" because the issue
under the HTSUS is not a straight headcount of the human features a figure may
possess, rather the issue is whether the figure as a whole and in a wider
context represents a human being. See
Def.'s Br. at 23. Moreover, under the more restrictive "dolls" provision
of the 1250*1250 HTSUS, even one non-human feature the figure possesses
prohibits its classification as a "doll."[30]
Second, these Marvel characters are known in popular culture as
"mutants." That fact further informs their classification. Cf, e.g., HQ 950200 (Dec. 18, 1991)
(Customs recognizing that some knowledge from popular culture is necessary to
identify certain figures, such as angels, devils, monsters, as "non-human").
They are more than (or different than) humans. These fabulous characters use
their extraordinary and unnatural physical and psychic powers on the side of
either good or evil.[31] The figures'
shapes and features, as well as their costumes and accessories, are designed to
communicate such powers. For example, "Storm" (a tall and thin figure with white
mane-like hair and dark skin) in assortment 4900 K has a lightening bolt as an
accessory, reflecting the character's power to summon storms at will. "Rictor"
in assortment 4950 E which has a human appearance but comes with a built-in
wheel in the back which when turned makes the figure vibrate and thus is
designed to simulate Rictor's "power to generate earthquake-like vibrations."
"Pyro" in assortment 4950 E has a costume that, with two long hoses attached to
it, is designed to aid the character's "mutant ability to control and shape
flames."[32]
Third, the "X-Men" figures are marketed and packaged as "mutants" or
"people born with `x-tra' power." That they are denoted as such by the
manufacturer or the importer lends further credence to the assertion that they
represent creatures other than (or more than) human beings. See R. Dakin & Co. v. United States,
14 CIT 797, 801, 752 F.Supp. 483, 486 (1990) (noting that "the importer's own
consistent reference to the subject merchandise [by name] is a factor-albeit not
the only one-to be considered for tariff classification purposes") (emphasis in
the original); Dan-Dee Imps., Inc. v.
United States, 7 CIT 241, 246, 1984 WL 3737 (1984) (finding reference to
article on packaging by a particular name a "significant" factor).[33] For all the foregoing reasons, the "X-Men"
1251*1251 and "X-Force" figures considered are not properly classifiable as
"dolls" under HTSUS heading 9502.
If these figures are not "dolls" under HTSUS heading 9502, then they
must fall into the category of "other toys" under HTSUS heading 9503. See Explanatory Note 95.03, HTSUS.[34] After determining the proper heading, the
court may next inquire under which subheading the items are properly
classifiable. See GRI 1 &
6, HTSUS. In particular, this court finds that the action figures at issue are
properly classifiable under HTSUS subheading 9503.49.00, "Toys representing
animals or non-human creatures (for example, robots and monsters) and parts and
accessories thereof." A number of the figures exhibit likenesses to robots or
monsters. For example, they have robotic features, such as artificial eyes or
limbs, or monster-like features, such as exaggerated muscle tone and large,
sharp-looking teeth. Cf. Minnetonka
Brands, Inc. v. United States, 24 CIT ___, ___, 110 F.Supp.2d 1020, 1029
n. 5 (2000) (finding that the containers in the shape of the well-recognized
children's character "Ernie" is properly classifiable under HTSUS 9503.49.00
rather than as plastic bottles because "Ernie's cartoon-like figure, orange
complexion, red button nose, and oval head [is] a sufficient basis for finding
him a `nonhuman creature'").
More importantly for the purposes here, the category "mutants" is
like the categories of "robots" or "monsters." The categories of "robots,"
"monsters," and "mutants" are all, even if humanoid, extrahuman (or non-human)
categories of being. A "robot" is a "machine (sometimes resembling a human being
in appearance) designed to function in place of a living agent." 14 OED at 7. A
"monster" is "[something extraordinary or unnatural; a prodigy, a marvel." 9 OED
at 1036-37. A "mutant" is an "individual (or, formerly, a species or form) which
has arisen by or undergone mutation, or which carries a mutant gene (in Science Fiction, usu[ally] an
individual with freak or grossly abnormal anatomy, abilities, etc.)." 10 OED at
145-46. The first meaning of "mutation" is the "action or process of changing;
alteration or change in form or qualities." Id. at 146-47. Thus, a "mutant" is
someone (possibly originally belonging to human species) who has undergone
change and become something other than human. Especially, in science fiction, a
"mutant" is someone with an extraordinary appearance or abilities, such as the
figures at issue here. Since HTSUS subheading 9503.49.00 leaves open the set of
those that can be classified as "toys representing animals or non-human
creatures (for example, robots and monsters)," it is clear that the intention
was to include other categories of non-human creatures that are not necessarily
enumerated in the subheading. Thus, to include "mutants" under this subheading
is perfectly appropriate.
The court next turns to the more difficult classification of the
action figures referred to as "Fantastic Four." The assortment 45100 is
comprised of the "Fantastic Four" action figures "Black Bolt," "Mole Man,"
"Terrax," "Mr. Fantastic," and "Silver Surfer." The plastic figures are
five-inch tall, poseable, and humanoid in shape. On their packaging, the
characters are not referred to as "mutants" or are not known in popular culture
as "mutants." They are, however, known to have extraordinary, "super-human"
abilities. "Mr. Fantastic" is the "leader of the superhuman quartet known as the
Fantastic 1252*1252 Four," as described on the "Mr. Fantastic" figure's
packaging. The character can "stretch himself into almost any shape."
Accordingly, the "Mr. Fantastic" figure has stretchable arms made of soft
plastic. "Black Bolt," despite resembling a human, has wings attached to its
arms and is described as belonging to "Inhumans." "Terrax" has a grey skin color
signifying that the character's body is made of a "living stone-like substance."
"Silver Surfer," although once human, has been transformed by "the power
cosmic," and the figure's entire body along with its surfboard is consequently
metallic.
Accordingly, the court finds that the four "Fantastic Four" figures
considered above do not represent human beings and are thus not classifiable as
"dolls" under HTSUS heading 9502. They are properly classifiable as "toys
representing animals or non-human creatures (for example, robots and monsters),"
under HTSUS subheading 9503.49.00. The last figure in this series is truly a
close call. "Mole Man" is described as both being human and having an "odd
appearance,... extraordinary intelligence, cunning, and fighting prowess with
his staff."[35] The figure is stout and
thick, has exaggerated troll-like features, wears a green outfit and cape, and
comes with a staff and a small figure of a "humanoid" creature (yellow in skin
with protruding white eyes) symbolizing the fact that the character uses small
humanoid creatures to "do his bidding." Mole Man lives "within the Earth," and
consistent with the character's subterranean nature, the figure has unusually
pale skin and wears blue glasses. The character also "controls a legion of giant
monsters." Given the entire context of the figure's appearance and fantastic
story, and the fact that it is part of a series where the characters are
described as "super-human," the court finds that "Mole Man" is also not properly
classifiable as a "doll" under the HTSUS and instead should be classified as an
"other toy" under HTSUS subheading 9503.49.00.
The court next considers the items collectively referred to as
"Spider-Man" action figures, two of which also pose more difficult
determinations than the mutant figures of the "X-Men" series. "Spider-Man"
action figures come in assortments numbered 47100, 47110, 47700, 47710, and
47720. They are similar to "Men" figures in that they are made of plastic,
poseable, and five- or ten-inches tall. At issue are essentially four figures,
"Hobgoblin," "Dr. Octopus," "Kingpin," and "Kraven."[36] Two of the figures are humanoid with at least one
feature that prevents them from being representations of normal humans. The
figure of "Hobgoblin" has blood red eyes with no pupils and features fangs and
yellow skin. The "Dr. Octopus" figure has four tentacles coming from its back.
Both Hobgoblin and Dr. Octopus have supernatural powers. The other two figures
are more difficult to classify. The figure of "Kingpin" resembles a man in a
suit carrying a staff. Nothing in the storyline indicates that Kingpin possesses
superhuman powers. Yet, Kingpin is known to have exceedingly great strength
(however "naturally" 1253*1253 achieved) and the figure itself has a large and
stout body with a disproportionately small head and disproportionately large
hands. As it is, the figure is designed to communicate the legendary and
freakish nature of the character. Even though "dolls" can be caricatures of
human beings, the court is of the opinion that the freakishness of the figure's
appearance coupled with the fabled "Spider-Man" storyline to which it belongs
does not warrant a finding that the figure represents a human being. The last
figure in the "Spider Man" line is "Kraven." According to its packaging, Kraven
is the "last of a dynasty of Russian aristocrats" and "trained himself to be the
greatest hunter on Earth." He uses "secret jungle potions" to "augment[] his
strength and stamina." The character's strength and extreme ability to hunt are
reflected in the figure's highly exaggerated muscle tone in arms and legs, its
lion's-mane like vest, studded belt, and the spear that is included in the
packaging. "Kraven" is the representation of a mythical or legendary creature
more properly belonging to the list of robots, monsters, angels, and devils
(which have been expanded by Customs to include trolls),[37] rather than being a representation of an ordinary
human being. See 9503.49.00,
HTSUS; Explanatory Note 95.03, HTSUS. Consequently, the court finds that all of
the four "Spider-Man" figures before it are properly classifiable as "toys
representing animals or non-human creatures (for example, robots and monsters)."
[38]
With respect to the trading cards included in the packaging of a
number of figures, the court agrees with Toy Biz that they are classifiable as
"accessories" of the figures within the meaning of HTSUS 9503.49.[39] "[N]either the HTSUS nor its legislative history defines
`accessory.' " Rollerblade, Inc. v.
United States, 24 CIT ___, ___, 116 F.Supp.2d 1247, 1252 (2000). "When a
tariff term is not defined in either the HTSUS or its legislative history, the
term's correct meaning is its common meaning." Mita Copy star Am. v. United States,
21 F.3d 1079, 1082 (Fed.Cir.1994) (citation omitted). To determine the common
meaning of a tariff term, a "court may rely upon its own understanding of terms
used, and may consult standard lexicographic and scientific authorities." Id. (citation omitted). The noun
"accessory" is defined as " `a thing of secondary or subordinate importance,' "
Toy Biz III at 1302 (citing
Merriam Webster's Collegiate
Dictionary 7 (10th ed.1997)), or "something contributing in a subordinate
degree to a general result or effect; an adjunct, or accompaniment," 1 OED at
74. Customs interprets the term "accessory" according to its common meaning and
further notes that "an accessory 1254*1254..., in addition to being an article
related to a primary article, is used solely or principally with that article."
See, e.g., HQ 958924 (June 20,
1996). Moreover, even though "an accessory is not necessary to enable the goods
with which they are used to fulfill their intended function[, it], however, must
contribute to the effectiveness of the principal article (e.g., facilitate the
use or handling of the principal article, widen the range of its uses, or
improve its operation)." Id.
Elsewhere, Customs rejected separate classification of certain
"trading cards" included with a toy set, which was comprised of the trading
cards, two toy figures, and a toy box called "environment." See HQ 958345 (Mar. 11, 1996).
Instead, Customs found that the cards are properly classifiable as "simple
accessories," which are allowed to be included in a toy set per Explanatory
Notes. See id. In that case,
the cards were depicting at least one figure contained in the set. Id. Customs, on the other hand,
thought a separate classification of the trading cards was appropriate in the
case of "X-Men" because "[although the trading cards picture and describe the
powers of individual action figures, each card has no connection to the figure
with which it is packaged." HQ 958039 (Mar. 8, 1996). This court finds the
distinction legally insignificant. Each trading card here may not be related to
that figure, but it does picture and describe a figure in the same series and is
thus related to the series. The trading cards here serve the function of linking
the figures in the series and, therefore, enhance the play value and use of the
figures. Even though the trading cards may also be used for collecting and
trading, their inclusion with the figures indicates that those are not their
principal use. The inclusion of the trading cards provides additional incentive
to purchase the package. Moreover, if separate classification of printed
materials that generally accompany toys were encouraged in every case, that may
lead to absurd results; for example, the classification of an instruction manual
included with a toy item as separate "printed matter."[40] The 9503 "other toys" (and the 9502 "dolls") provision of the HTSUS
is sufficiently broad (by virtue of including "accessories" of the articles) to
also allow the inclusion of the trading cards at issue
here.
Finally, the only non-action figure item before the court,
"Jumpsie,"[41] assortments 33200 or 33201,
is properly classifiable as a "doll" under HTSUS subheading 9502.10.40, as
classified by Customs.[42] The parties
agree that "Jumpsie" 1255*1255 consists of a doll representing a girl child and
a toy trampoline with other accessories, such as a toy comb for the doll,
included. The doll has the ability to "jump" on the trampoline when a built-in
mechanism in the doll is activated. Toy Biz argues that Jumpsie is classifiable
as a "toy set" under HTSUS 9503.70.80, primarily by virtue of the inclusion of
the trampoline.[43] See Pl.'s Br. at 17. Toy Biz points
out that Customs described the item as a "set" and then resorted to "essential
character" analysis under GRI 3(b), HTSUS, to classify the item as a "doll."
See id. at 18. GRI 3(b)
provides in pertinent part that:
[m]ixtures, composite goods
consisting of different materials or made up of different components, and goods
put up in sets for retail sale, 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, (emphasis
added)
GRI 3(a) provides in pertinent part
that:
when two or more headings each refer
to part only of the materials or substances contained in mixed or composite
goods or to part only of the items in a set put up for retail sale, 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.
In classifying "Jumpsie" as a doll, Customs reasoned that the item
met the criteria for a "set" specified in Explanatory Note X to GRI
3(b),[44] but pursuant to Explanatory Note VIII to GRI 3(b), the item's "doll"
component lent its "essential character" to the item by being of "greatest bulk,
weight, and value." HQ 957688 (Oct. 11, 1995); Explanatory Note VIII to GRI 3(b)
(providing that for essential character analysis the item's "bulk, quantity,
weight or value" is a factor). Customs also explained that while "the doll's
`jumping' ability would be adversely affected by the toy trampoline's absence,
... [w]ithout the toy trampoline, the article would remain a doll (capable of at
least some movement) and its accessories." HQ 957688 (Oct. 11, 1995). Customs'
reasoning is persuasive; the "doll" component lends the item "Jumpsie" its
"essential character." While the doll would still have value as a plaything
without the trampoline, the trampoline would not have the same value without the
doll. The toy trampoline is merely an accessory that enhances playing with the
doll. Cf Toy Biz III at 1302
("A standard dictionary definition of `accessory' is `a thing of secondary or
subordinate importance.' ") (citing Merriam Webster's Collegiate
Dictionary 7 (10th ed.1997)); 1 OED at 74 (defining "accessory" as
"something contributing in a subordinate degree to a general result or effect;
an adjunct, or accompaniment"). Customs may describe a toy article as a "set"
and still reject the "toy set" classification under HTSUS 9503.70.80. Consistent
with the court's earlier observations about the "toy set" provision of the
HTSUS, no component of a "toy set" should dominate over another. Here, the
"doll" component of the article 1256*1256 clearly dominates (in terms of the
place it has in the set) over the non-doll items in the set, such as the
trampoline.
IV. CONCLUSION
For all the foregoing reasons, Plaintiffs motion for summary judgment
with respect to action figures (alternately referred to as "X-Men," "X-Force,"
"X-Men Projectors," "X-Men Steel Mutants," "Spider-Man," and "Fantastic Four")
is granted and Defendant's cross-motion is denied. Plaintiffs motion for summary
judgment with respect to trading cards is granted and Defendant's cross-motion
is denied. Plaintiffs motion for summary judgment with respect to the item
"Jumpsie" is denied and Defendant's cross-motion is granted.
A separate judgment will be entered
accordingly.
[1]See discussion infra
regarding the many cases construing the TSUS provisions, including Hasbro Indus., Inc. v. United States, 12 CIT 983, 703 F.Supp. 941 (1988),
aff'd, 879 F.2d 838 (Fed.Cir.1989) ("Hasbro").
[2] It may also be a case of last impression. The current action may
have retrospective practical effect only. Although the most recent HTSUS (2002)
retains the distinctions in the "toys" classifications, the court notes that all
of the "toys" provisions including the "dolls" provision now have the same duty
rate, that is, all "toys" are allowed to enter the United States duty-free.
See HTSUS (2002) 9502 &
9503.
[3] This case, Court No. 96-10-02291, has been designated a test case,
under which four other cases, Court Nos. 96-05-01299, 96-05-01448, 96-05-01449,
and 97-05-00744, have been suspended. See Order signed on June 12,
1998.
[4] Contrary to Plaintiff's assertion, the inclusion of the weapons and
such does not convert the items into "toy sets." See Pl.'s Mem. in Supp. of Mot. for Summ.
J. at 15 ("Pl.'s Br.").
These items are properly classifiable as "accessories" under the HTSUS "doll" or
"toy" provisions because they are of subordinate value compared with the figures
themselves and their inclusion with the figures is intended to enhance the play
value of the figures. See
discussion infra regarding
"accessory."
[5]See HQ 957636 (Oct. 11, 1995); HQ 957688 (Oct. 11, 1995); HQ 957603
(Oct. 12, 1995); HQ 958244 (Mar. 4, 1996); HQ 958039 (Mar. 8,
1996).
[6] In its entirety, HTSUS (1994) subheading 9503.49.00 reads: "Other
toys; reduced-size (`scale') models and similar recreational models, working or
not; puzzles of all kinds; parts and accessories thereof: Toys representing
animals or non-human creatures (for example, robots and monsters) and parts and
accessories thereof: Other."
[7] This Court previously rejected two alternative arguments of Toy Biz
with respect to certain items. Concerning a class of items referred to as "X-Men
Projectors," Toy Biz had argued that they were alternatively classifiable as
"toy sets," under subheading 9503.70.80, HTSUS. In rejecting this argument, this
Court specifically found that neither the projector mechanism housed in the
figure nor the film disks packaged with the "X-Men Projectors" justify their
classification as "toy sets." Toy Biz, Inc. v. United States, 26 CIT ___, ___, 219 F.Supp.2d 1289, 1302-03
(2002) (`Toy Biz III")
(also holding that film disks are properly classified as "accessories").
Concerning another class of items called "X-Men Steel Mutants" and an additional
item named "Silver Samurai" (in assortment 4900 I), Plaintiff had argued that
they were the equivalent of "tin soldiers and the like" expressly included
within the scope of HTSUS heading 9503 per Explanatory Notes to that heading and
that they were therefore specifically precluded from being classified as
"dolls." Relying on the reasoning of Hasbro, this Court dismissed that
argument because the items displayed unique and distinctive physical appearances
and personalities. See
Toy Biz, Inc. v. United States, 25 CIT ___, ___, 132 F.Supp.2d 17, 20-21
(2001)
("Toy Biz II").
[8] Subheading 9503.70.80 of HTSUS reads: "Other toys, put up in sets or
outfits, and parts and accessories thereof: Other:
Other."
[9]See HQ 957636 (Oct. 11, 1995); HQ 957688 (Oct. 11, 1995); HQ 957603
(Oct. 12, 1995); HQ 958039 (Mar. 8, 1996).
[10] On October 18, 2000, the parties entered into a Stipulation
identifying all items at issue in this action. Later, with both parties'
consent, Plaintiff withdrew from the case the items "Daredevil," "Invisible
Woman," "Punisher," "U.S. Agent," and "Peter Parker," and Defendant agreed to
classify the items "Beast," "Bonebreaker," "Cameron Hodge," "Robot Wolverine,"
and "Vulture" as "other toys," under subheading 9503.49.00 of the HTSUS. See Letter from Attorney for PI.
(Mar. 9, 2001); Pl.'s Mot. to Withdraw Items from Case (Order signed by Judge
Delissa A. Ridgway on March 27, 2001); Decl. of Alice Wong ¶ 3 (Apr. 5, 2001);
Letter from Attorney for Def. (Apr. 6, 2001). The parties agree that there is no
dispute as to what the items in question are. See Letter from Attorney for Def.
(Nov. 18, 2002). Moreover, the court has before it sufficient samples and
pictures of the items in question which enable the rendition of a dispositive
decision. Cf. Janex Corp. v. United States, 80 Cust.Ct. 146, 148 (1978) ("samples are potent witnesses and have great probative effect
respecting the purpose for which an article is
designed").
[11] The court notes that in the absence of a Customs regulation
interpreting the HTSUS provisions, Customs' tariff decision in an ordinary
classification ruling is not entitled deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694
(1984). See United States v. Mead Corp., 533 U.S. 218, 231, 121 S.Ct. 2164, 150 L.Ed.2d 292
(2001); JVC Co. of Am., Div. of U.S. JVC Corp. v. United States, 234 F.3d 1348, 1351 (Fed.Cir. 2000). Such rulings may, however, be upheld based on their " `power to
persuade.' " Mead, 533 U.S. at 235, 121 S.Ct. 2164 (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124
(1944)).
[12] This Court previously rejected the parties' motions for summary
judgment, finding that genuine issues of material fact remained in the
application of the Customs' classification test (casual observer test) to this
case and that the "parties do not agree on ... material facts." See Toy Biz I at 651 (2000). Since
then the parties have submitted affidavits to the court, see Aff. of JoAnn E. McLaughlin (May
24, 2001); Decl. of Alice Wong (April 5, 2001), and further solidified the list
of the items at issue, see
Letter from Attorney of Def. (Nov. 18, 2002) (confirming Stipulation dated
October 18, 2000 and the items disposed of since then), which have resolved
earlier issues of material fact.
[13] Even though Customs cites pre-HTSUS cases for this proposition, the
court notes that an eo nomine
provision still "includes all forms of the article" under the HTSUS. See Nidec Corp. v. United States, 68 F.3d 1333, 1336 (Fed.Cir. 1995).
[14] Customs points out, for example, "Professor X" being featured in a
wheel chair, "Silver Samurai" being a "Japanese action figure," "Bishop" being
"a black man," and "Rogue" being "a female action figure." Def.'s Br. at
22.
[15] In framing its arguments. Customs first contends that Toy Biz has
"not met its burden of establishing that its claimed classification provisions
are correct, independently or in comparison to the decisions made by Customs."
Def.'s Br. at 17. Customs cites
28 U.S.C. § 2639(a)(1), which provides that Customs' tariff classifications are
"presumed to be correct" and the "burden of proving otherwise shall rest upon
the party challenging such decision." However, the court notes that that
presumption, as it relates to evidence, "carries no force as to questions of
law." Universal Elecs. Inc. v. United States, 112 F.3d 488, 492 (Fed.Cir. 1997). "[W]here... a question of law is before the Court on a motion for
summary judgment, the statutory presumption of correctness is irrelevant."
Blakley Corp. v. United States,
22 CIT 635, 639, 15 F.Supp.2d 865, 869 (1998); see also
JVC Co. of Am., Div. of U.S. JVC Corp. v. United States, 23 CIT 523,
527, 62 F.Supp.2d 1132, 1136 (1999),
affd, 234 F.3d 1348 (Fed. Cir.2000). Accordingly, since the interpretation of the scope of the HTSUS
provisions at issue here is a question of law presented on cross-motions for
summary judgment, Customs' interpretation of those provisions will not be
presumed correct.
[16] In two other cases that involved the HTSUS "doll" classification,
the alternative classification was different than the classification of "other
toys." See Club Distribution, Inc. v.
United States, 20 CIT 839 (1996) ("other articles for Christmas
festivities under subheading 9505.10.50, HTSUS"); Midwest of Canon Falls, Inc. v. United States, 20 CIT 123, 128 (1996),
aff'd in part and rev'd in
part, 122 F.3d 1423 (Fed.Cir. 1997) ("Christmas ornaments made of wood under subheading 9505.10.15,
HTSUS" and "Christmas ornaments other than those made of wood or glass under
subheading 9505.10.25, HTSUS").
[17] In the TSUS, the "dolls" provision is in Subpart E ("Models; Dolls,
Toys, Tricks, Party Favors") of Part 5 ("Arms and Ammunition; Fishing Tackle;
Wheel Goods; Sporting Goods, Games and Toys") of Schedule 7 ("Specified
Products; Miscellaneous and Nonenumerated Products"). The TSUS "dolls" provision
is subdivided into "Doll clothing imported separately," 737.17, TSUS, and
"Other: Dolls," 737.18-25, TSUS. The TSUS "toys" provisions are found in
737.28-55, TSUS. The TSUS headings for "toys" read "Toy figures of animate
objects (except dolls)" and "Toy figures of inanimate
objects,
[18] The "dolls" provision continues to be broadly construed in the sense
that it "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." Explanatory Note 95.02, HTSUS. Further, dolls can be made of a variety of
materials, such as "rubber, plastics, textile materials, wax, ceramics," etc.
Id. In any event, the issue
here is not the "broadness" of the "dolls" provision with respect to uses of
dolls or the materials they are made of. Also, not at issue here is how much
detail a doll must have and in what form a doll must be to represent a human
being. Cf, e.g., Wregg Imps. v. United States, 10 CIT 679, 682 (1986) (affirming Customs classification of nested "matreshkas" as dolls
even though they are egg-shaped with human features drawn on
wood).
[19] Moreover, the observation that the "other toys" provision is a
residual provision compels the conclusion that the "dolls" and "other toys"
classifications are mutually exclusive. Therefore, the items are not prima facie classifiable under both
provisions and GRI 3 is thus not pertinent to the analysis here. Cf. GRI 3(a), HTSUS ("When, ... for
any ... reason, goods are, prima
facie, classifiable under two or more headings, classification shall be
affected as follows: (a) The heading which provides the most specific
description shall be preferred to headings providing a more general
description.").
[20] The plain meaning rule of statutory construction dictates that "when
results flowing from an apparently plain meaning of a statute are ridiculous,
absurd, or manifestly unjust, or will have the effect of rendering some other
plain provision of the statute nugatory, it will not be presumed that the
lawmaking body so intended, and further inquiry may be had." United
States v. Palm, Fechteler & Co., 4 Ct. Cust.App. 1, 2 (1913).
[22] Elsewhere, Customs draws a similar distinction between "to
represent" and "to resemble." In holding that "troll" figures are not
classifiable as "dolls," Customs specifically noted that even though certain
troll figures may resemble
human beings, they do not represent
human beings. See HQ 089895 (Nov. 4,
1991).
[23] The court notes that for over a decade Customs has employed a test,
called the "casual observer" test, to differentiate between the "dolls" and
"other toys" provisions of the HTSUS. See HQ 086088 (Feb. 21, 1990). The
same test was applied to the items in question here. This court's task is to
construe the tariff provisions at issue and to determine which provision
properly encompasses the items presented here. Therefore, it is appropriate for
the court to examine Customs' application of the "casual observer" standard as
gleaned from Customs' published rulings. The "casual observer" standard is
described as eliminating the need to closely evaluate toy figures to determine
their non-human characteristics. See
id. The court notes that this description seems to be honored more in the
breach and that the word "casual" may be misleading. Customs claims that it
should not be necessary to closely examine the item to determine its non-human
characteristics and that "[t]he phrase `close examination' may encompass the
need to look closely, the need to remove the clothes of the figure, or perhaps
even the need of the observer to guess as to whether a feature that appears to
be non-human is, in actuality, such a feature." Id. However, and in fact, close
examinations seem to be regularly performed when Customs makes such
determinations. See, e.g., id.
(Customs describing the figure "Gloriana" in detail and observing that the "only
non-human characteristic" of the figure is a "set of small wings attached to the
cloth at her back," which "can be easily removed from the figure without causing
damage to the basic item," and that they, "even from the rear, are not easily
recognizable as wings," in making the determination that the figure is properly
classifiable as a "doll"). Indeed, the court itself by necessity undertook
similar comprehensive examinations when determining the correct classification
of the items at issue in this case. See discussion infra. The classification decision
must be a carefully considered one and so long as Customs performs the casual
observer test as it has done in the past it need not perform, pursuant to this
opinion, any examination stricter. When it is readily apparent to a "casual
observer" that a toy item (given its equipment, accessories, costumes, general
appearance, and packaging) does not represent a human being, a "doll"
classification is not warranted under the HTSUS.
[24] The item known as "Jumpsie" is not an "action figure." See discussion infra regarding
"Jumpsie."
[25] Customs agreed to classify "Beast" and "Robot Wolverine" in
Assortment 4900 I and "Bonebreaker" and "Cameron Hodge" in Assortment 4900 J as
"other toys." See Letter from
Attorney for Def. (April 6, 2001).
[26] The fact that these items are packaged in pairs has no bearing on
their classification. The court rejects the position that when two or more toys
are merely packaged together, the resultant product is a "toy set" under HTSUS
9503.70. But see Aff. of JoAnn
E. McLaughlin at 10 (May 24, 2001). There have been no cases so far that
construed HTSUS 9503.70. Customs, on the other hand, notes that while "some
components [of a toy set] may be used independently of the rest ... without
disqualifying the classification[,... ] integral to that concept is that the
articles `typically' are used together to provide amusement [and that] it is
sufficient that the components of the toy set possess a clear nexus which
contemplates a use together to amuse." HQ 962327 (June 23, 2000) (quotation
omitted). While here the pairing of, for example, "Professor X" and "Magneto"
may have been to communicate their opposing positions in the "X-Men" storyline,
this fact alone is insufficient to convert such a combination into a "toy set."
While it may not be random, such a combination is not intended to create
something different than what the figures themselves stand for on their
own.
[27] Assortment 49605-11 consists of "Silver Samurai v. Robot Wolverine"
with a smaller "Cyclops" figure included. Customs already agreed to classify
"Robot Wolverine" as "other toy" under HTSUS 9503.49.00. See Letter from Attorney for Def.
(April 6, 2001).
[28] The court notes that it does not have samples of all of these "X-Men
Projectors." The court, however, has samples of the figures themselves from the
other assortments and samples "Bishop Projector" and "Dr. Octopus Projector" to
illustrate the projection mechanism, all of which is sufficient to visualize the
"X-Men Projectors" at issue.
[29] Previously, this Court found that the "Men Projectors" are not "toys
sets" under HTSUS subheading 9503.70.80. See Toy Biz III at 1302-03. Thus,
with respect to "Men Projectors," the remaining issue is the same as with other
"X-Men" figures, that is, whether or not they represent human beings to be
classified as "dolls," and, if not, whether they are to be classified as "toys
representing animals or non-human creatures." The Toy Biz III court also held that "the
existence of the projector component alone is [insufficient to warrant the
Projectors' classification as `other toys.'" Toy Biz III at 1302. This court
agrees with the Toy Biz III
court on this point, yet the court still finds that the "X-Men Projectors" are
properly classifiable as "other toys" for different
reasons.
[30] By the same token, an angel figure, for example, may have all of the
human features, except a pair of wings on its back (which may or may not be
visible to an observer from the front), yet not be a "doll" under the HTSUS.
See N.Y. 894669 (Mar. 2, 1994)
(Customs denying doll classification to an angel toy because "despite having an
obvious human appearance., [the toy] possesses an apparent non-human feature,
large transparent wings").
Both Professor Charles Xavier and his friend Magnus agreed that an
upsurge in mutant activity had begun—what they couldn't agree on is how mutants
and normal humans could co-exist. Believing that mutants must rule, Magnus
became Magneto, the evil master of magnetism. To combat him, the telepathic
Professor-X formed the X-Men, a group that would represent his dream of
human-mutant cooperation!
[32] In the rare instances that a figure seems to exhibit no non-human
characteristics, its "mutant" nature is communicated otherwise. For example,
"Longshot" in assortment 4900 F looks like a young man with blond long hair who
is equipped with knives, and wears unusual clothing. Longshot has extraordinary
abilities at par with the other "X-Men" figures (as provided for on its
packaging):
Once a slave to the extradimensional tyrant Mojo, Longshot eventually
escaped, came to Earth and joined forces with the X-Men. Armed with razor-sharp
throwing knives, his combined abilities of amazing agility and incredible luck
allow him to take on the fiercest foes.
[33] The court does not wish to imply that any toy designated by the
manufacturer/importer as "non-human" can escape the "doll" designation under the
HTSUS. Here, the figures are not merely packaged as such, but known to anybody
familiar with the Marvel Comics characters as
"mutants."
[34] Any toy not classifiable as a "doll" or a "wheeled toy" falls under
the "other toys" category. It goes without saying that these items are not
"wheeled toys;" nor is such an interpretation
urged.
[35] The sample of "Mole Man" before the court has purple hair which this
opinion does not consider. In the pictures of "Mole Man" on the packaging of
other figures, the figure appears to support brown hair. It would be flatly
arbitrary to hinge the classification of "Mole Man" on which sample the court
(or Customs) had before it and what hair color such a sample would
have.
[36] The court does not have before it the sample of "Dr. Octopus" and
the ten-inch versions of the figures. Instead, the court has "Dr. Octopus
Projector" and the five-inch versions of the other three, which are sufficient
to evaluate the figures.
[37]See HQ 089895 (Nov. 4, 1991). But see DD 897488 (May 31, 1994)
(Customs classifying a stuffed elf figure with "large eyes, pointed ears, a bulbous nose, puffy
cheeks and a painted-on smile" as a "doll" under HTSUS 9502) (emphasis added).
The court notes that in the latter case, Customs "explained" its position by
stating that "elves are not nonhuman creatures, as defined, and thus not
excluded from the doll provision." Id. It is not clear how Customs
reconciled classifying trolls as "other toys" and elves as
"dolls."
[38]See also HQ 957803 (Feb. 2, 1996) (Customs classifying the actual "Spiderman"
figure as "other toy" on the basis that "[t]he head of the figure is clearly
non-human in appearance" covered with the well-known mask of
"Spiderman").
[39] Customs classified the trading cards under HTSUS (1994) subheading
4911.99-6000 as "Other printed matter, including printed pictures and
photographs: Other: Other: Other: Printed on paper in whole or in part by a
lithographic process," dutiable at 0.4% ad valorem. See HQ 957636 (Oct. 11,
1995); HQ 957688 (Oct. 11, 1995); HQ 957603 (Oct. 12, 1995); HQ 958039 (Mar. 8,
1996).
[40] While Customs may separately classify an instruction manual which
will be "repackaged" in another country with a pager cradle, a transformer, and
recorded media, see N.Y. E89772
(Nov. 26, 1999); when the instruction manual is already "packaged for retail
sale," it is properly classifiable as an "accessory" (to certain computer
equipment), see HQ 089180 (Aug.
2, 1991).
The "Jumpsie" doll set, identified by item nos. 33200 or
33201, is composed of a doll (not stuffed), two small pom-poms (for the doll), a
small styling comb (for the doll), and a toy trampoline. Assembly of the toy
trampoline involves snapping together a round plastic frame, and attaching (by
16 rubber bands) a plastic-coated textile mat measuring approximately 10-1/2
inches in diameter. The doll measures approximately 10-1/2 inches in height and
has a battery compartment for 2 "AA" batteries (not included). When placed on
the toy trampoline and switched on, the doll appears to jump on its own. When
imported, the retail package is suitable for direct sale without repacking. HQ
957688 (Oct. 11, 1995) (emphasis added).
[42] HTSUS subheading 9502.10.40 reads: "Dolls representing only human
beings and parts and accessories thereof: Dolls, whether or not dressed: Other:
Not over 33 cm in height."
[43] HTSUS subheading 9503.70.80 reads: "Other toys, put up in sets or
outfits, and parts and accessories thereof: Other:
Other."
[44] Explanatory Note X to GRI 3(b) provides that for purposes of this
rule, the term "goods put up in sets for retail sale" means goods
that:
(a) consist of at least two different articles which are, prima facie, classifiable in
different headings ...;
(b) consist of products or articles put up together to meet a
particular need or carry out a specific activity;
and
(c) are put up in a manner suitable for sale directly to users
without repacking (e.g., in boxes or cases or on
boards).
Viu como não é apenas no Brasil que se discute
Classificação de Mercadorias.
Cesar
Olivier Dalston, www.daclam.com.br.Fonte: http://www.radiolab.org/blogs/radiolab-blog/2011/dec/22/mutant-rights/?goback=%2Egde_82085_member_86973999. |
terça-feira, 10 de abril de 2012
CLASSIFICAÇÃO DE MERCADORIAS
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