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HQ 959749




October 23, 1997

CLA-2 RR:CR:GC 959749 MMC

CATEGORY: CLASSIFICATION

TARIFF NO.: 4420.10.00; 6810.99.00

Port Director of Customs
555 Battery Street
San Francisco, CA 94111

RE: Protest 2809-96-100702; "Barnyard Bunch Crow" and "Sculptstone Bear"; HRL 088146; EN 44.20, 95.03; Note 1(p) to Chapter 44; 19 CFR ?174.14(a); United States v. Topps Chewing Gum Inc, Anhydrides & Chemicals, Inc. v. U.S., ITT Corp. v. United States; 19 CFR 174.28

Dear Port Director:

The following is our response to protest 2809-96-100702 concerning your classification decision regarding articles identified as "Barnyard Bunch Crow (item # 2755)" and "Sculptstone Bear" under the Harmonized Tariff Schedule of the United States (HTSUS). Descriptive literature as well as a sample of the "Barnyard Bunch Crow" were submitted for our review. A meeting was held on March 12, 1997, to further discuss the "Barnyard Bunch Crow" classification. No sample, description or discussion concerning the "Sculptstone Bear" was provided.

FACTS:

The articles are described as a "Barnyard Bunch Crow" and a "Sculptstone Bear." The "Barnyard Bunch Crow " is a 7 « inch two dimensional carved wooden figurine with a head, arms and legs. The figurine has been painted black. The face has two white painted eyes and an orange beak. The body and head of the figurine are clothed in "country style" overalls, dresses and hats made of various textile fabrics. A tag attached to the sample is marked "Whittled Whimseys " and states the following:

Traditions are the heart and soul of a family, providing a bridge of memories that spans many generations. From the early settlers, who brought European arts and crafts to America, we inherited a rich cultural tradition. Inspired by the traditions of early American life, of days when neighbors gathered for quilting bees and barn rasings, when communities and families depended upon one another for livelihood and leisure-we have created "Whittled Whimseys ." A tribute to the plain folks, whose vision and handiwork have become a part of the American legacy, this collection seeks to inspire families to continue to create traditions, stories and memories for our children.[emphasis added]

The back of the tag states, in pertinent part, "...CAUTION: FOR DECORATIVE PURPOSES ONLY NOT SUITABLE FOR CHILDREN."

In a meeting held on March 12, 1997, protestant indicated both of these figurines are sold in card and gift shops. The catalog indicates that:
the "Barnyard Bunch Crow" is of the whittled friends collection of country folk art designs and is inspired by the traditions of the past. (Not gift boxed, except as noted)

Furthermore, protestant indicated that the catalog is given to card and gift shop retailers. Finally, we note that the Protest and Summons Information Report dated May 24, 1996, indicates that the subject articles are manufactured by a company known as "Top Green Gifts."

Protestant was directed to enter the "Barnyard Bunch Crow" under subheading 4420.10.0000, HTSUS, as "Wood marquetry and inlaid wood; caskets and cases for jewelry or cutlery and similar articles, of wood; statuettes and other ornaments, of wood; wooden articles of furniture not falling within chapter 94: Statuettes and other ornaments, of wood." The "Sculptstone Bear" was entered under subheading 6810.99.00, HTSUS, which provides for "Articles of cement, of concrete or of artificial stone, whether or not reinforced: Other article: Other."

Protestant asserts that both the "Barnyard Bunch Crow" and the "Sculptstone Bear" are classifiable under subheading 9503.49.0020, HTSUS, which provides for "Other toys; reduced-size ("scale") models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof: 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 entry, made on January 2, 1996, was liquidated on May 3, 1996, and a protest was timely filed on May 24, 1996. The headings under consideration are:

4420 Wood marquetry and inlaid wood; caskets and cases for jewelry or cutlery and similar articles, of wood; statuettes and other ornaments, of wood; wooden articles of furniture not falling within chapter 94

6810 Articles of cement, of concrete or of artificial stone, whether or not reinforced

9503 Other toys; reduced-size ("scale") models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof

ISSUE:

Whether the "Barnyard Bunch Crow" and "Sculptstone Bear" are classifiable as statuettes based on their constituent material or as other toys.

LAW AND ANALYSIS:

"Sculptstone Bear"

The protest contains no specific description of the "Sculptstone Bear" or any distinct and specific explanation of the justification for the objection to Customs classification other than to propose an alternate classification. "Customs' tariff classification decisions are presumed to be correct [and] the importer bears the burden of proving otherwise" (28 U.S.C.2639(a)(1), e.g., Anhydrides & Chemicals, Inc. v. U.S., CIT Slip Op. 96-49, dated March 7, 1996. See also, ITT Corp. v. United States, 24 F. 3d 1384, 1387 (Fed. Cir. 1994), a case concerning request for reliquidation of an entry to correct a clerical error, mistake of fact, or other inadvertence under 19 U.S.C. 1520 (c)(1), in which the Court stated:

...[A] prudent importer would submit all its supporting documentary evidence along with its timely notice alleging a mistake of fact before Customs' consideration in order to facilitate a prompt and favorable decision [and as] [t]he ][CIT] correctly notes... " a party who waits past the time of filing its....[section] 1520(c)(1) request to file supporting documentation risks an adverse decision by Customs in the interim" [24 F.3d 1388].

Similarly, an imprudent importer who fails to provide necessary evidence ( such as a specific description of the imported merchandise) and who fails to distinctly and specifically set forth the nature of and justification of its objection within the statutory and regulatory time limit, risks an adverse decision by Customs on its protest (see 19 CFR 174.28). In the absence of any such evidence, and in view of the presumption that Customs tariff classification is correct, the protest is denied in regard to the "Sculptstone Bear".

"Barnyard Bunch Crow"

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined 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 may then be applied.

In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive, or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See, T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989). EN 44.20, states in pertinent part, that:

This heading covers panels of wood marquetry and inlaid wood, including those partly of material other than wood.

It also covers a wide variety of articles of wood (including those of wood marquetry or inlaid wood), generally of careful manufacture and good finish, such as: small articles of cabinetwork (for example, caskets and jewel cases); small furnishing goods; decorative articles....

....The heading includes:

...(3) Statuettes, animals, figures and other ornaments

As the tag, catalogs and physical appearance of the article all indicate, the "Barnyard Bunch Crow" is a wooden ornamental figure described by heading 4420, HTSUS, specifically, subheading 4420.10.000, HTSUS.

Protestant argues that while the subject "Barnyard Bunch Crow" meets the description of heading 4420, HTSUS, it is nonetheless excluded from classification in heading 4420, HTSUS, by application of Note 1(p) to Chapter 44. Note 1(p) states, in pertinent part, that: "This chapter does not cover:... Articles of chapter 95 (for example toys, games, sports equipment);..."

Heading 9503, HTSUS, applies to "other toys," i.e., all toys not specifically provided for in the other headings of chapter 95. Although the term "toy" is not defined in the tariff, the EN to Chapter 95 indicates that a toy is an article designed principally for the amusement of children or adults.

In Headquarters Ruling Letter 088146 dated February 23, 1991, Customs classified stuffed Santa Claus and Christmas Bear tissue box covers. Customs indicated that the HTSUS headings which classify toys provide for a class of merchandise whose principal use is that of amusement, for either children or adults. Counsel stated that "The stuffed Santa/Bears only have one purpose, that of providing entertainment or amusement value to children. * * * Children will derive significant play value from either article." We disagreed and held that the tissue box covers neither imparted a significant play value to children or adults, nor were they designed or principally used for such amusement. Rather, the tissue boxes were simple novelty items incorporating a seasonal motif and were principally used as home decorative furnishing articles. Finally, Customs indicated that there was no requirement that the goods have a utilitarian function to be excluded from the class "toys."

Like the tissue box covers, the "Barnyard Bunch Crow" does not impart significant play value to children or adults. Their form and constituent material are not indicative of a toy nor are they constructed to be a toy imitation of a crow. They are devoid of any of the primary toy features that appeal to the fun sense, such as exaggerated or comical facial features, a sound device, animation, bright colors or adjustable limbs.

The "Barnyard Bunch Crow", with its wooden flat configuration is designed for display as an ornamental decorative piece. Such design is evidenced by the cautionary language on the tag, as well as the marketing evidenced by language quoted in the facts section which appears on the tag and the article's presentation in the catalogs. Furthermore, the manufacturer of the "Barnyard Bunch Crow" specializes in gift items, as evidenced by the company's name. Finally, the "Barnyard Bunch Crow" is sold in card and gift stores, a venue more typical for the sale of decorative display pieces than for toys.

Protestant claims that the "Barnyard Bunch Crow" is a toy because it provides the same kind of "frivolous amusement" that playthings give. In support of its position, protestant cites The United States v. Topps Chewing Gum Inc., 58 CCPA 157, C.A.D. 1022 (1971), (hereinafter Topps) which concerned the classification of various decorative buttons with humorous quotes. Topps held that if the purpose of an object is to give the same kind of enjoyment as playthings give, its purpose is amusement. It is the quality of mind or emotion induced by the object which is controlling. Therefore, an article classified as a toy does not have to be a plaything, provided that the quality of emotion induced by the article takes on the character of frivolous amusement. We are of the opinion that the reasoning provided for in Topps is not applicable to the present articles. In Topps, the court classified articles whose humorous sayings created evident and inherent amusement. This is not the case with the "Barnyard Bunch Crow." Nothing about it demonstrates that it is inherently or evidently amusing.

Protestant argues that the principle expressed in EN 95.02, that the class "dolls" includes dolls intended for decorative purposes, should apply to "toys" as well. We disagree. The cited EN defines the scope of heading 95.02, only. Other headings in the tariff specifically provide for decorative statuettes of various constituent materials. The fact that such headings have been provided clearly indicates that statuettes of various constituent materials were not intended to be included within the scope of heading 9503, HTSUS.

Heading 9503, HTSUS, does not describe the "Barnyard Bunch Crow." Therefore, the "Barnyard Bunch Crow" is classifiable under heading 4420, HTSUS, specifically, subheading 4420.10.0000, HTSUS, which provides for "Wood marquetry and inlaid wood; caskets and cases for jewelry or cutlery and similar articles, of wood; statuettes and other ornaments, of wood; wooden articles of furniture not falling within chapter 94: Statuettes and other ornaments, of wood."

Harbor Maintenance Fees

Protestant alleges that the assessment of harbor maintenance fees (HMF) under 26 U.S.C. ?? 4461, 4462, is unconstitutional. However, protestant failed to provide any distinct and specific explanation of the justification for the objection to the assessment. In the absence of any distinct and specific explanation of the justification for the objection to the port's assessment the protest is denied in regard to the HMF claim.

HOLDING:

The protest should be DENIED IN FULL.

The "Barnyard Bunch Crow" is classifiable under subheading 4420.10.0000, HTSUS as "Wood marquetry and inlaid wood; caskets and cases for jewelry or cutlery and similar articles, of wood; statuettes and other ornaments, of wood; wooden articles of furniture not falling within chapter 94: Statuettes and other ornaments, of wood," with a 1996 general column one duty rate of 4.3 percent ad valorem.

The "Sculptstone Bear" is classifiable under subheading 6810.99.00, HTSUS, as "Articles of cement, of concrete or of artificial stone, whether or not reinforced: Other article: Other," with a general column one duty rate of 2.9 percent ad valorem.

Concerning harbor maintenance fees, due to absence of any distinct and specific explanation of the justification for the objection to the assessment the HMF claim is denied.

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 this decision must be accomplished prior to the mailing of the decision. Sixty days from the date of this 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, Freedom of Information Act and other public access channels. A copy of this decision should be attached to the Customs Form 19, Notice of Action on the protest, to be returned to the protestant.

Sincerely,

John Durant, Director
Commercial Rulings Division

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