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HQ 088983


August 12, 1991

CLA-2 CO:R:C:F 088983 STB

CATEGORY: CLASSIFICATION

TARIFF NO.: 9503.49.0020

District Director of Customs
300 South Ferry St.
Terminal Island
Room 2017
San Pedro, CA 90731

RE: Decision on Application for Further Review of Protest No. 2704-89-003227, filed October 18, 1989, concerning the classification of a toy bear bottle warmer.

Dear Sir:

This is a decision on a protest filed October 18, 1989, against your decision in the classification and liquidation of entry no. xxx-xxxxxxx-x, made August 4, 1989, and liquidated September 29, 1989.

FACTS:

You classified the subject merchandise under subheading 6307.90.9050, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), as an other made up article of textile, dutiable at a rate of 7% ad valorem. Protestant claims that the merchandise should be classified under subheading 9503.41.1000, HTSUSA, as a stuffed toy. If the item is classified as claimed by protestant, it will be entitled to duty free entry under subheading 9902.95.02, HTSUSA.

The sample bear figure is a depiction of a bear approximately eight inches in height. The item's shell or "skin" is constructed of plush man-made textile fabric. A hollow body cavity forms an interior compartment designed to hold an 8-ounce infant feeding bottle. This line of merchandise is marketed as "Baby Buddies." For the purposes of this letter, we will sometimes refer to the sample item as "Baby Buddy."

ISSUES:

Whether the subject bear figure should be classified as a toy under heading 9503, HTSUSA, or as a made up article of textile under heading 6307, HTSUSA?

If the article is classified as a toy, should it be classified as stuffed or as non-stuffed?

LAW AND ANALYSIS:

The General Rules of Interpretation (GRIs) 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.

Heading 9503, HTSUSA, provides, in pertinent part, for "[o]ther toys." The Explanatory Notes to Chapter 95 indicate that "[t]his chapter covers toys of all kinds whether designed for the amusement of children or adults." The phrase, "designed for the amusement of" is generally understood to indicate that the use of an article will be a factor when classification as a toy is being considered.

Additional U.S. Rule of Interpretation 1(a), HTSUSA, provides that, absent language to the contrary, the following applies:

[A] tariff classification controlled by use (other than actual use) is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation of goods of that class or kind to which the imported goods belong and the controlling use is the principal use.

Therefore, in order to be classified as a toy, the Baby Buddy would need to be principally used for amusement. Customs defines principal use as that use which exceeds each other single use of the article.

Here, it is our determination that the principal use of the subject Baby Buddy will be as a toy. In Ideal Toy Corp. v. United States, 78 Cust. Ct. 28, C.D. 4688 (1977), the court stated that "[W]hen amusement and utility become locked in controversy, the question becomes one of determining whether the amusement is incidental to the utilitarian purpose, or the utility purpose incidental to the amusement." This item has the
appearance and play value of any toy, plush bear and can therefore be used for amusement without being used as a bottle holder. If the item is used as a bottle holder, however, it will continue to provide amusement and a sense of companionship to the child. In this instance, the primary value of the item is its play value; the utilitarian aspect of the merchandise is incidental to the amusement factor. Thus, the subject item is classified under heading 9503, HTSUSA, the provision for other toys.

The next question to be determined concerns whether the Baby Buddy should be classified as a stuffed toy or as a toy that is not stuffed. It is Customs position that a 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 as stuffed or non-stuffed. In this instance, stuffing material does not impart the shape and form of the torso of the figure. Nor does the torso of the item feel as if it is stuffed. The torso of the Baby Buddy basically has no form; it has the appearance and feel of an empty shell with either no stuffing or a very minimal amount of stuffing material.

HOLDING:

The subject Baby Buddy is classifiable under subheading 9503.49.0020, HTSUSA, the provision for toys representing animals or non-human creatures, other, toys not having a spring mechanism, other. The applicable duty rate is 6.8% ad valorem.

You are instructed to deny the protest, except to the extent reclassification of the merchandise as indicated above results in a partial allowance. 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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