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HQ 962131




November 2, 2000

CLA2 RR:CR:TE 962131 SG

CATEGORY: CLASSIFICATION

TARIFF NO.: 9503.41.0010

Port Director
U.S. Customs Service
300 South Ferry Street
Terminal Island, CA 90731

RE: Application For Further Review of Protest No. 2704-98-100849; Classification of Stuffed Pillow-like Articles in Form of Variety of Animals; Festive Articles; Stuffed Toys; Pillows: Pillow Buddies, Jr.®

Dear Sir:

This is in response to the request for further review of a protest timely filed by White and Case on behalf of Crown Crafts, Inc., concerning the proper classification of various stuffed articles depicting animals or creatures trademarked as “Pillow Buddies.” which were imported from Hong Kong. The Pillow Buddies, described on the handtag and the entry documentation as Pillow Buddies, Jr.® were classified when entered on April 18, 1997, May 5, 1997, and May 10, 1997, as other made up textile articles in subheading 6307.90.9989, Harmonized Tariff Schedule of the United States Annotated (HTSUSA). The importer has protested the classification and claims the proper classification of these articles is as stuffed toys under subheading 9503.41.0010, HTSUSA, or if not considered to be sufficiently stuffed, as other toys representing animals or non-human figures under subheading 9503.49.0020, HTSUSA. We have considered the protest and our decision follows.

FACTS:

The samples are pillow-like articles designed and shaped to resemble various animals and creatures. The entry documentation lists the Pillow Buddies, Jr.® styles as a mini frog, mini lion, mini gray rabbit, mini pink rabbit, mini dog, mini purple dinosaur, mini baby lamb, mini cat, mini tiger, and mini dalmatian; gray rabbit, elephant, cat, pig (both green and pink), lion, panda, raccoon and reindeer. A sample of the mini dalmatian was submitted. Each Pillow Buddies, Jr.® differs depending on the animal or creature that it represents. However all possess the following characteristics and features, as appropriate: The outer surfaces are composed of 100% polyester fleece or a blend of polyester, acrylic, cotton, and/or nylon. The fabric is stuffed with 100% polyester fiberfill or a similar type of soft filling material giving the articles a soft, resilient feel. They generally measure approximately 15 inches long (including tails) by 9 inches at the widest point and 2 1/2 inches thick. The construction of these figures includes stuffed heads with eyes, noses, snouts and ears, some of which are three-dimensional, although most are just overlaid material in contrasting colors; a stuffed, fairly block-shaped torso onto which appendages, e.g. heads, tails, and scales are attached; flat and plain undersides; and arm, leg, and paw appendages which are stuffed but are configured in such a way as to form, with the torso, a rectangle shaped article.

ISSUE:

Whether the proper classification of Pillow Buddies, Jr.® is in heading 6307, HTSUS, as other made up textile articles, in heading 9503 as stuffed or other toys, or in heading 9404 as other pillows?

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.

The protestant contends that these Pillow Buddies, Jr.® should be classified in subheading 9503.41.0010, HTSUSA, which provides for stuffed toys representing animals or non-human creatures, or in the alternative in subheading 9503.49.0020, HTSUSA, as other (than stuffed) toys representing animals or non-human creatures.

The competing headings are 6307, HTSUS, other made up textile articles, 9503 HTSUS, stuffed or other toys, and 9404, HTSUS, other pillows.

Heading 9404, HTSUS, provides for articles of bedding and similar furnishings (for example, mattresses, quilts, eiderdowns, cushions, pouffes and pillows) fitted with springs or stuffed.

A pillow is defined by Webster's Third New International Dictionary, Unabridged (1986) as "1 a : something used to support the head of a person resting or sleeping; esp: a sack or bag made typically of cloth and filled with a soft or resilient material (as feathers, down, hair, sponge rubber): CUSHION." In defining cushions and pillows, The Random House Dictionary of the English Language, the Unabridged Edition (1983) states at p. 357, "CUSHION, PILLOW, BOLSTER agree in being cases filled with a material more or less resilient, intended to be used as supports for the body or parts of it. A CUSHION is a soft pad used to sit, lie, or kneel on, or to lean against: a number of cushions on a sofa; cushions on pews in a church. A PILLOW is a bag or case filled with feathers, down, or other soft material, usually to support the head: to sleep with a pillow under one's head"

It is the opinion of this office that so long as pillows like articles such as Pillow Buddies, Jr.® are sufficient in size and stuffing to be capable of providing support, classification in heading 9404, HTSUSA, is not excluded.

Chapter 95, HTSUSA, covers toys of all kinds, whether designed for the amusement of children or adults. Although the term “toy” is not specifically defined in the tariff, the ENs to Chapter 95, HTS, indicate that this chapter covers toys of all kinds whether designed for the amusement of children or adults. Customs has classified in subheadings 9503.41 through 9503.49, HTSUSA, the provisions for toys representing animals or non-human creatures, those toy animals or creatures which are full or reasonably full-figured depictions of the animals or creatures which they seek to represent, which are fully configured in the sense that they are an articulation of the character in three dimensions, i.e. a representation in a sculptured form. See Headquarters Ruling (HQ) 951533, HQ 957560, and HQ 957617.

In the case of Louis Marx & Co., Inc. v. United States, 66 Cust. Ct. 139, C. D. 4183 (1971), the court stated that " `figures of animate objects' must be read to mean forms or representations of humans or animals." In Headquarters Ruling Letter (HRL) 079594, we stated that Customs position has been that the phrase "figures of animate objects" refers to a clearly defined configuration of an animate object in a three-dimensional form. It is, therefore, clear that there is both judicial and administrative support for the notion that the provisions for toys representing animals and non-human creatures require that a toy figure must be a full or reasonably full-figured depiction of the animal/creature it seeks to represent and that figure must be a soft, sculptured edition or an articulation in three dimensions of the head, torso, and appendages of the character being portrayed.

The instant article, identified as a mini dalmatian Pillow Buddies, Jr.® does not completely meet this criterion. The construction of this figure includes stuffed heads with eyes, noses, snouts and ears consisting of overlaid material in contrasting colors rather than articulated features; a stuffed, fairly block-shaped torso with appendages incorporated into it; the heads and ears are attached; and flat and plain undersides. The paw appendages are stuffed but are configured in such a way as to form, with the torso, a rectangle shape. The sample Pillow Buddies, Jr.® is designed and constructed to lie in a flat position as would any pillow-like object. However, the small size of the article limits its ability to be used as a floor or bed pillow while watching TV, reading, relaxing, or napping. Even small children generally use full size pillows rather than small pillows to rest their heads while sleeping or napping.

In order for the Pillow Buddies, Jr.® to be classified as toys they must be principally designed for amusement. The shapes, colors, and designs of the Pillow Buddies, Jr.® are amusing and appear similar to a toy. Their small size makes them easy to manipulate and adds to their play value to the ultimate user (a child). It appears that the imported articles although mainly used as a toy may have a limited dual purpose, for use as a pillow-like object. See, HRL 951309, dated April 26, 1993, which concerned M & M novelty figures designed as lids for closures for containers filled with candy. We noted in HRL 951309, that the merchandise had the appearance and play value of any toy, that it could be used for amusement without being used as a closure or stopper, that the primary value of the item is its play value, and that the utilitarian aspect of the merchandise is temporary and incidental to the amusement factor. We concluded that the articles were classified as toys. (See also HQ 958785).

Upon a review of the sample the Customs Service is of the opinion, that the primary use of the Pillow Buddies, Jr.® is as a toy and not as a pillow. Its small size, cartoon-like amusing appearance, and soft, manipulative polyester fleece skin make it imminently suitable and principally used as a toy plaything and its use for any other purpose would be secondary. For these reasons it is our opinion that the Pillow Buddies, Jr.® meet the requirement of a toy animal or creature and are classified in heading 9503, HTSUS.

The subheadings at issue essentially differentiate between toy animals that are stuffed and those that 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, in part, 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,

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; In 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 impart the shape and form of the Pillow Buddies, Jr. ®, which despite the torso area of the figure feeling somewhat less than fully packed, does return to its original form after being compressed. It is our view that taken as a whole the article adequately portrays an animal likeness and that the stuffed toy animal provides the essential character of the Pillow Buddies, Jr.®. It is therefore classified as a stuffed toy.

HOLDING:

The stuffed articles, as represented by the sample mini dalmatian,Pillow Buddies, Jr.®, are properly classified in subheading 9503.41.0010, HTSUSA, the provision for " Toys representing animals or non-human creatures...: Stuffed toys...: Stuffed toys."

Therefore, based on the foregoing discussion, you are instructed to ALLOW the protest in full.

In accordance with Section 3A (11)(b) of Customs Directive 0993550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, 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 make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs. treas.gov,
by means of the Freedom of Information Act and other methods of public distribution.

Sincerely,

John A. Durant, Director
Commercial Rulings Division

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