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HQ 953911


October 29, 1993

CLA-2 CO:R:C:F 953911 GGD

CATEGORY: CLASSIFICATION

TARIFF NO.: 9503.49.0020

District Director of Customs
1000 Second Avenue, Suite 2200
Seattle, Washington 98104-1049

RE: Decision on Application for Further Review of Protest No. 3001-93-100034, filed January 20, 1993, concerning the classification of a toy animal puppet identified as "Ralf."

Dear Sir:

This is a decision on a protest timely filed on January 20, 1993, against your decision in the classification of numerous entries made in 1992, of "Ralf" toy animal puppets.

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 toy animals made on or prior to December 31, 1992.

The sample article is a textile hand puppet, designed and shaped to somewhat resemble a beagle dog. When hand-supported in a sitting position, the item measures approximately 16 inches in
height by 35 inches in width (from outstretched forepaw to forepaw). The puppet's forelegs are disproportionately long, approximately three times as long as the hind legs. The article appears to be constructed of a plush knit fabric. An opening in the lower abdomen allows a person's hand and forearm to be inserted into the head and hollow torso, respectively, from which the figure's mouth and face may be manipulated. Although the fore and hind legs, and to a minimal extent, the head, are stuffed with a nonwoven, polyester fiberfill material, the torso contains no stuffing material whatsoever.

ISSUE:

Whether the toy animal puppet is properly classified in subheading 9503.41.10, HTSUSA, as a stuffed toy animal; or in subheading 9503.49.00, HTSUSA; as a toy animal that is not stuffed.

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRIs). 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 GRIs may then be applied. The Explanatory Notes (ENs) 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 GRIs.

Customs and the protestant agree that the article is a toy animal. The proper heading is thus 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 a toy representing an animal or non- human creature is stuffed for tariff purposes, it is Customs long-standing position that the stuffing materials must impart the shape and form of the item's torso. Customs has also held that the "feel" of an article may be relevant to the determination as stuffed or non-stuffed. This 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, this office considered the tariff classification of a toy animal puppet similar to the "Ralf" article. In that case, although the shell covering the puppet's torso contained a small amount of stuffing material, the toy animal was held to be not stuffed. After citing the definition above, we 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 HRL 952634, issued March 29, 1993, a protest involving the same toy animal puppet classified in HRL 089334, and essentially the same issue presented here, was denied in full.

The protestant posits that requiring a figure's torso to be stuffed or filled in order for the item to be deemed "stuffed" for tariff purposes is illogical unless applied to dolls only, since their torsos must generally represent those of human
beings. Protestant states that animals and non-human creatures, such as spiders and octopi, often have torsos that are not nearly as prominent as their other body parts. The protestant asserts that, since Ralf's stuffed legs are the figure's most prominent features, the fact that the torso contains no stuffing or filling materials should not preclude classifying the figure as a "stuffed" toy.

The protestant also claims that the toy figure must be classified by application of GRI 3, since: 1) no definition or description of "stuffed" appears in the terms of the headings, or in any relative section or chapter notes; and 2) the figure is a composite article, comprised of stuffed and non-stuffed portions. The protestant submits the results of tests performed on the "Ralf" article by a private laboratory, which indicate that the item is 63.5 percent stuffed by weight, and 70.7 percent stuffed by volume. In light of these percentages and the prominence of the figure's stuffed legs, the protestant extrapolates that the toy's essential character is provided by its stuffed portions.

To further support the propriety of a GRI 3 analysis, protestant cites HRL 084637, issued August 23, 1989, which in turn quotes HRL 084118, issued April 13, 1989. The rulings involve classification issues presented when garments are comprised of both knit and woven portions, or both textile and non-textile components, which in most cases, would preclude classification by application of GRI 1.

In HRL 084637, Customs established criteria (claimed to be relevant here) which, in certain instances, would call for a GRI 3(b) or 3(c) analysis. As noted in the ruling, the criteria are applicable only to the classification of body garments, and only when neither portion (knit or woven) or component (textile or nontextile), comprises at least 60 percent of the visible surface area of the garment. A condition precedent to the application of GRI 3, is an inability to properly classify the merchandise solely by reference to GRI 1, and the subsequent GRIs taken in their appropriate order. The presence of both stuffed and non- stuffed portions in this toy figure does not render it a composite article, and the analysis directed by GRI 3 is inapplicable.

The protestant avers that, even if Customs determines that "Ralf" is not "stuffed," the toy animal still meets the broader definition of a "filled" toy, as set forth in U.S. Note 6 of Subchapter II, Section XXII, HTSUSA, which states that:

For the purposes of heading 9902.95.02, the term "filled" includes toy figures which are not completely filled or are filled with materials such as plastic beads or crushed nutshells but which otherwise possess the characteristics of toy figures classifiable as "stuffed".

With emphasis on the "not completely filled" phrase in U.S. Note 6, petitioner infers that as long as some portions of a toy figure contain some filling material, a toy animal with a hollow torso qualifies as "filled." We do not read the phrase in isolation from the remainder of U.S. Note 6, however, and find that toy figures which are not completely filled must still possess the characteristics of toy figures classifiable as "stuffed."

Although the authors of the U.S. Note have provided little guidance to assist in interpreting the meaning of the term "stuffed," we find that logic and consistency are best served when determinations as to whether toy figures are stuffed, are based upon what imparts the shape and form of the item's torso. While the "feel" of the toy figure may be relevant, the relative prominence of the torso in comparison to other body parts is not. A toy animal or non-human creature whose torso is not shaped and formed by stuffing/filling materials is not a stuffed toy for classification purposes, regardless of the size or number of appendages emanating from the non-stuffed torso.

In this case, the stuffing materials do not impart the shape or form of the toy animal puppet. The puppet's torso consists of an empty cavity designed for the insertion of a human arm and hand, not stuffing material. For tariff classification purposes, the presence and quantity of stuffing material in Ralf's limbs and head are irrelevant in determining whether or not the toy is stuffed. It is the lack of any stuffing material in the toy animal's torso that brings about a non-stuffed quality and feeling, and precludes classifying the toy as stuffed.

HOLDING:

The item identified as "Ralf," a toy animal puppet, 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 applicable 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.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision, the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS, and to the public via the Diskette Subscription Service, Lexis, the Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director

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