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HQ 089955


March 12, 1992

CLA-2 CO:R:C:F 089955 STB

CATEGORY: CLASSIFICATION

TARIFF NO.: 9503.41.1000

District Director of Customs
555 Battery St.
P.O. Box 2450
San Francisco, CA 94126

RE: Decision on Application for Further Review of Protest No. 2809-91-100706, filed April 17, 1991, concerning the classification of a plush snow leopard from Korea.

Dear Sir:

This is a decision on a protest filed April 17, 1991, against your decision in the classification and liquidation of a plush snow leopard identified as item 46296, entry made December 24, 1990, and liquidated on March 29, 1991.

FACTS:

The merchandise at issue consists of a plush stuffed toy representation of a leopard. The tail of the figure is curved around and attached to the body of the figure by means of a sewn stitch which consists of two pieces of thin string. The submission by the importer and the product specifications sheet provided with the submission describe the tail as being "tacked" down to the side of the body. The catalog page submitted by the importer depicts the snow leopard with an untacked tail and the tail protruding out from the body.

When the figure is measured with the tail tacked to the body, the measurements are approximately 13 inches (32 cm) in height, 10 inches (25 cm) in width, and 23 inches (59 cm) in length. When the tail is untacked and laid straight out, the length of the figure increases to approximately 33 inches (84 cm); when the tail is not held straight out, but allowed to fall naturally, the length is approximately 29 inches (74 cm). The other measurements remain the same.

ISSUE:

Whether the stuffed snow leopard should be measured with its tail tacked and thus be eligible for duty free treatment under subheading 9902.95.02, HTSUSA, as a stuffed animal not exceeding 63.5 cm in length, width, or height or whether it should be measured with the tail untacked in which case it will exceed the allowed measurement and not be eligible for duty free treatment.

LAW AND ANALYSIS:

Classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is made in accordance with the General Rules of Interpretation (GRI's). The systematic detail of the harmonized system is such that virtually all goods are classified by application of GRI 1, that is, according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI's may then be applied. The Explanatory Notes (EN's) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI's.

In this instance, classification can be accomplished by reference to GRI 1. Subheading 9503.41.10, HTSUSA, provides for other toys, toys representing animals and parts and accessories thereof, stuffed toys and parts and accessories thereof, stuffed toys. The snow leopard at issue fits within this provision.

Articles that are classifiable under subheading 9503.41.10, HTSUSA, may be eligible for duty free treatment under subheading 9902.95.02, HTSUSA. Subheading 9902.95.02, HTSUSA, provides for stuffed or filled toys representing animals or nonhuman creatures, not having a spring mechanism and not exceeding 63.5 cm (approximately 25 inches) in either length, width, or height (provided for in subheading 9503.41.10 or 9503.49.00).

Headquarters Ruling Letters (HRLs) 086099, dated March 28, 1990, and 087118, dated August 13, 1990, stated Customs position on the measurement of stuffed animals as follows:

It is Customs position that the measurement of a toy animal figure is determined essentially by its construction. When imported in a fixed, unadjustable position, the length, width, or height is determined by measuring the toy figure in its fixed standing, sitting, or other position. However, when the toy
figure is imported in an adjustable condition, the length, width, or height is determined by adjusting the toy to its normal upright or standing position (i.e., the position that the stuffed animal will most likely be used in) and measuring it from the highest point of its head to the lowest point on its feet.

In this instance, of course, we are not concerned with height; it is not the measurement from the head to the feet that will change depending on the position of the tail, but rather the measurement from end to end.

It is our determination that the proper measurement of this merchandise, for classification purposes, is the measurement taken with the tail untacked and either held straight out or allowed to fall in its most likely position; although the tail usually tends to curve slightly when allowed to fall on its own, it also sometimes rests in a straight position and, over time, will probably straighten out more. By either method the snow leopard measures well over the 63.5 cm (or 25 inches) allowed in subheading 9902.95.02, HTSUSA, and thus does not qualify for duty free entry.

In arriving at this determination, we have considered several factors. Although the tail is tacked to the side of the body, the temporary nature of this attachment indicates that the animal is imported with its tail in an "adjustable condition." Only two thin pieces of string - not plastic or some other less breakable material - connect the tail to the side of the body. As mentioned supra, the product specifications sheet for this item describes the tail as being "tacked" down to the side of the body. The Webster's New World Dictionary, Third College Edition, 1988, at pp. 1361-62 defines the verb form of the word "tack" as "2a) the act of fastening, esp. in a slight or temporary way, b) sewing a stitch...later removed" and "to attach temporarily, as by sewing with long stitches." All of these definitions stress the temporary nature of the tacking process. In this instance, one quick snip of the scissors or one hard pull by an individual is all that is needed to make the tail free of the tacking without any resulting harm to the article.

Since we have determined that the snow leopard is imported in an "adjustable condition", we next discuss what will be "the position that the stuffed animal will most likely be used in", i.e., its "normal" position. In his submission of April 9, 1991, the importer states that since "most stuffed animals are for children", if the tail is not tacked, children will often grab the animal by the tail and damage the article. While this contention by the importer might demonstrate one reason to so
attach the tails of all stuffed animals (which is not done) we note that the tacking in this instance is probably not sufficient to withstand the rough play of children. If there is no intention that the tail not be pulled free, it should be attached in a much firmer method, perhaps down the entire length of the tail. As for the aesthetic impact of the tail being curved around the body, also mentioned by the importer, we discovered by manipulating the sample that the tail can be posed around the body without being attached. A further indication that the snow leopard is intended to be used and displayed with a free tail is the fact that it is depicted in the importer's catalog with its tail free, untacked and protruding out from the back of the animal. While the importer argues that this catalog picture is an inadvertence resulting from an untacked sample being the only sample available at the time of catalog production, we feel it is but one more factor demonstrating that "the position that the stuffed animal will most likely be used in" will be with the tail untacked. We also note that the importer, had he so desired, could have temporarily posed the snow leopard with the tail curved around the body, for catalog purposes, without the need for the tacking.

HOLDING:

The article identified as "plush snow leopard", item 46296, is classified in subheading 9503.41.1000, HTSUSA, the provision for toys representing animals or non-human creatures, stuffed toys, dutiable at 6.8% ad valorem. Since the figure exceeds 63.5 cm in length when adjusted to its normal position, it is not entitled to duty-free entry under subheading 9902.95.02, HTSUSA.

The protest should be denied. 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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