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HQ 086831


April 5, 1990

CLA-2 CO:R:C:G 086831 CB

CATEGORY: CLASSIFICATION

TARIFF NO.: 9404.90.9010

District Director of Customs
U.S. Customs Service
909 First Avenue
Room 2039
Seattle, Washington 98174

RE: Request for Further Review of Protest No. 3001-90-00049

Dear Sir:

Protest and request for further review were timely filed against the liquidation of entry number N16-0108021-4 covering shipments of a plush animal shaped comforter.

FACTS:

The instant merchandise is identified as a Wubie. It consists of a plush toy that can be posed in a stuffed animal configuration. The fill for the animal is designed to be folded out into a comforter or quilt for sitting or napping. When opened all that remains of the animal is the head and paws. The blanket has a 100 percent cotton shell and is filled with 100 percent non-woven man-made fibers.

ISSUE:

Whether the subject merchandise is classifiable as an article of bedding under heading 9404, HTSUSA, or as a toy in heading 9503, HTSUSA?

LAW AND ANALYSIS:

It is the importer's contention that the Wubies are classifiable as toys under subheading 9503.49.0020, HTSUSA, based on a New York ruling (824587 issued November 25, 1987) which classified a Wubie as a toy under the Tariff Schedule of the United States Annotated (TSUS). Congress has appropriately indicated that earlier tariff rulings must not be disregarded in applying the HTSUSA. The conference report to the Omnibus Trade Bill states that "on a case-by-case basis prior decisions should be considered instructive in interpreting the HTS[USA],
particularly where the nomenclature previously interpreted in those decisions remain unchanged and no dissimilar interpretation is required by the text of the HTS[USA]." H. Rep. No. 100-576, 100th Cong., 2d Sess. 548 (1988) at 550 (emphasis added).

It has consistently been Customs position that merchandise such as the one at issue is classified as articles of bedding under heading 9404, HTSUSA. In HRL 082520, issued September 20, 1988, a comforter which folded into a bunny with stuffed ears and feet was classified under 9404.90.9020, HTSUSA. Similar merchandise was also the subject of HRL 082601, issued October 17, 1988, which classified a comforter which folded into a doll as an article of bedding.

In the instant case a ruling was issued under the HTSUSA. HRL 084333, dated July 20, 1989, classified a Wubie under subheading 9404.90.9010, HTSUSA, as an article of bedding. The decision was reached that under the HTSUSA the merchandise qualified as a composite good and an essential character determination was made. The ruling held that the essential character was imparted by the comforter because it would be used as an article of bedding and that the comforter is also used as the stuffing for the animal portion. The toy portion is incidental to the comforter.

Thus, in the instant case, reliance on a previous TSUS ruling is unfounded. The TSUS did not provide for the requirement of an essential character determination. Therefore, the HTSUSA with the requirement of determining essential character makes the TSUS rulings no longer operative because a dissimilar interpretation is required.

HOLDING:

As a result of the foregoing, the Wubies are classifiable under subheading 9404.90.9010, HTSUSA, which provides for mattress supports; articles of bedding...stuffed, other, other, of cotton. You should DENY this protest in full. A copy of this decision should be forwarded to the law firm of Barnes, Richardson & Colburn.

Sincerely,

John Durant, Director

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