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HQ 088463


May 14, 1991
CLA-2 CO:R:C:F 088463 STB

CATEGORY: CLASSIFICATION

TARIFF NO.: 9503.41.1000, 9902.95.02

District Director of Customs
909 First Ave.
Rm 2039
Seattle, WA 98174

RE: Decision on Application for Further Review of Protest No. 3001-90-000173, filed February 1, 1990, concerning the classification of the "Squeaky Chick" Stuffed Toy

Dear Sir:

This is a decision on a protest filed February 1, 1990, against your decision in the classification and liquidation of entry no. 335-0902982-4, made March 3, 1989, and liquidated November 3, 1989.

FACTS:

The merchandise was originally entered under subheading 9503.41.1000, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), the provision for stuffed toys and eligible for temporary duty-free treatment under subheading 9902.95.0200, HTSUSA.

You classified and liquidated the entry under subheading 9503.49.0020, HTSUSA, the provision for other toys representing animals or non-human creatures, other than stuffed, dutiable at a rate of 6.8% ad valorem.

The sample item measures approximately 7 inches (from head to toe) by 8 inches (from wingtip to wingtip). It is a plush yellow version of a young chicken (a "chick") that contains traditional stuffing material. The item also contains a sound/animation device which emits chick-like squeaks when the item is shaken or squeezed in the right place.

ISSUE:

Whether the "Squeaky Chick" should be classified as a non- stuffed toy under subheading 9503.49.0020, HTSUSA, or as a stuffed toy under subheading 9503.41.1000, HTSUSA?

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI's) set forth the legal framework in which merchandise is to be classified under the HTSUSA. GRI 1 requires that classification be determined first according to the terms of the headings of the tariff and any relative section or chapter notes and, unless otherwise required, according to the remaining GRI's taken in order.

In this instance, the subject merchandise can be classified by reference to GRI 1. It is our determination that the item is properly classified under subheading 9503.41.1000, HTSUSA, as a stuffed toy.

As noted in Headquarters Ruling Letter (HRL) 087279, dated September 28, 1990, it is Customs position that a doll, or toy, is considered stuffed for tariff purposes if the stuffing materials impart the shape and form to the torso of the figure. Customs has also held that the "feel" of an item may be relevant to the determination of stuffed vs. non-stuffed. As with the item under consideration in HRL 087279, there is no harness or overlay attached to the torso of this merchandise to complicate the classification. In this case the stuffing imparts the shape and form of the item; the small animation device does not alter its form or shape. The soft feel of the vast majority of the "Squeaky Chick" demonstrates the commercial reality that this item is a stuffed toy.

HOLDING:

The merchandise known as "Squeaky Chick" is properly classifiable under subheading 9503.41.1000, HTSUSA, as toys representing animals or non-human creatures...stuffed toys. The merchandise is entitled to duty-free treatment under subheading 9902.95.02, HTSUSA.

The protest should be allowed in full. A copy of this decision should be attached to the Form 19 to be returned to the protestant.

Sincerely,

John Durant, Director

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