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HQ 953622


July 9, 1993

CLA-2 CO:R:C:F 953622 GGD

CATEGORY: CLASSIFICATION

TARIFF NO.: 9503.49.0020

District Director of Customs
300 South Ferry Street
Terminal Island, Room 2017
San Pedro, California 90731

RE: Decision on Application for Further Review of Protest No. 2704-93-100292, filed January 26, 1993, concerning the classification of an article identified as "Squeeze Tiger Plush."

Dear Sir:

This is a decision on a protest filed January 26, 1993, against your decision in the classification and liquidations on November 20 and 27, and December 11, 1992, of three entries of "Squeeze Tiger Plush," entered in July and August of 1992.

FACTS:

You classified the merchandise under subheading 9503.49.0020, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), the provision for other toys representing animals or non-human creatures, other than stuffed, not having a spring mechanism. Protestant claims that the merchandise should be classified under subheading 9503.41.1000, HTSUSA, the provision for other toys representing animals or non-human creatures, stuffed toys; and that the goods should be free of duty under subheading 9902.95.02, HTSUSA, which provides for the suspension of duty on entries of stuffed animals made on or prior to December 31, 1992.

The merchandise at issue is a toy figure depicting a tiger which measures approximately 11 inches in height by 12 inches in width (from outstretched limb to limb). The figure is
constructed of a 100 percent acrylic plush fabric. Inserted within the figure's torso is a plastic, bellows-type sound device which emits a purring sound when squeezed. Although the head and appendages of the figure are stuffed with shredded polyester filling material, there is little stuffing in place between the sound device and the interior shell of the torso.

ISSUE:

Whether the "Squeeze Tiger Plush" should be classified as a stuffed toy, or as a toy that is not stuffed.

LAW AND ANALYSIS:

Classification under the 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.

Customs and the protestant agree that the article is a toy animal. The proper heading is clear, i.e., heading 9503 for toys. The subheadings at issue essentially differentiate between toy animals that are stuffed, and those which are not stuffed.

In determining whether an article classifiable within heading 9503 is stuffed for tariff purposes, it is Customs position that the stuffing materials must impart the shape and form of the torso of the animal or creature. Customs has also held that the "feel" of an article may be relevant to the determination as stuffed or non-stuffed. This long-standing position is based, in part, on the dictionary definition of the verb "stuff," which was adopted in Customs Information Exchange Ruling (C.I.E.) 449/46, issued August 7, 1946. The cited definition is as follows:

Stuff, v. I.t. 1. To fill to distention by crowding something into; cram; pack full; as, to stuff a trunk full of clothes; to stuff the head with knowledge.

2. Specif., to fill with material specially prepared for such use; as, to stuff a cushion, to stuff a fowl for cooking. 3. In taxidermy, to fill out with suitable material (the skin of a bird or beast), and arranged so as to make a life-like form. 4. To cram into a small space; crowd; as, to stuff a newspaper into one's pocket. 5. To fill full or distend by crowding or being crowded into; often with out; as the strangers stuffed the gallery; the sawdust stuffs out the doll's body.

In Headquarters Ruling Letter (HRL) 089334, issued August 26, 1991, Customs, after citing this definition, stated that:

It is apparent that the emphasis of the above definition is upon the filling and/or distending of the article that is "stuffed." There is a generous use of words and phrases such as "cram," "crowd," and "pack full." Customs has reiterated its acceptance of the above definition on many occasions since the C.I.E. ruling was published, and has not altered its rather strict standards concerning the "stuffed" classification of articles similar to the item at issue.

In this case, the stuffing materials do not impart the shape or form of the toy figure, which is not "crammed" with stuffing so as to fully distend the shell. The article's torso is essentially designed to contain the sound device. Further, the volume of stuffing material within the torso is minor in proportion to the volume displaced by the device. The minimally stuffed shell and the sound device give the toy animal a non- stuffed quality and feeling.

Protestant next asserts that Customs recently adopted definition of the term "stuffed," as applied to dolls, should be extended to cover toy animals, and result in the "Squeeze Tiger Plush" being classified as stuffed, in subheading 9503.41.1000. It was and continues to be Customs intent that this definition, adopted in HRL 086264, issued June 22, 1992, and in Customs Service Decision (CSD) 92-28, applies only to the classification of figures determined to be dolls of heading 9502. We note that prior to the adoption of this new practice, Customs consultations with numerous importers and other representatives of the trade, other Government agencies, and with members of Congress and their
staffs, concerned the evolution of a definition relevant only to stuffed dolls, not to stuffed toys (e.g., animals and non-human creatures).

In Headquarters Memorandum 952108, issued July 21, 1992, Customs reemphasized that CSD 92-28 had established a classification practice applicable to stuffed dolls of heading 9502, which would have no impact on the classification of merchandise in heading 9503. The definition or test adopted by Customs describes what criteria a doll must meet to be classified as stuffed. Throughout the statement of the criteria, references are made to dolls alone.

Historically, the term "doll" has not been interpreted to mean dolls and animals and non-human creatures. Definitions pertaining to dolls have not necessarily applied to toy figures of animate or inanimate objects. The disparate treatment of dolls as opposed to toys (animals and non-human creatures) in the HTSUSA, clearly indicates that subheadings 9502.10.20 and 9503.41.10, are two individual and distinct provisions. As the HTSUSA has provided for dolls and toys in separate headings, Customs specified distinct criteria for the separate classification of these articles. The Congressional enactment of temporary legislation in two separate provisions, which reduce the rates of duty for stuffed dolls under subheading 9902.95.01, and for stuffed toys under subheading 9902.95.02, is further indication that stuffed dolls are to be afforded treatment separate from that of stuffed toy animals.

HOLDING:

The item identified as "Squeeze Tiger Plush" is properly classified in subheading 9503.49.0020, HTSUSA, the provision for other toys representing animals or non-human creatures (for example, robots and monsters) and parts and accessories thereof, other, toys not having a spring mechanism, other. The general column one duty rate is 6.8 percent ad valorem.

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

Sincerely,


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