CLA-2 CO:R:C:F 088983 STB
District Director of Customs
300 South Ferry St.
Terminal Island
Room 2017
San Pedro, CA 90731
RE: Decision on Application for Further Review of Protest
No. 2704-89-003227, filed October 18, 1989, concerning the
classification of a toy bear bottle warmer.
Dear Sir:
This is a decision on a protest filed October 18, 1989,
against your decision in the classification and liquidation of
entry no. xxx-xxxxxxx-x, made August 4, 1989, and liquidated
September 29, 1989.
FACTS:
You classified the subject merchandise under subheading
6307.90.9050, Harmonized Tariff Schedule of the United States
Annotated (HTSUSA), as an other made up article of textile,
dutiable at a rate of 7% ad valorem. Protestant claims that the
merchandise should be classified under subheading 9503.41.1000,
HTSUSA, as a stuffed toy. If the item is classified as claimed
by protestant, it will be entitled to duty free entry under
subheading 9902.95.02, HTSUSA.
The sample bear figure is a depiction of a bear
approximately eight inches in height. The item's shell or "skin"
is constructed of plush man-made textile fabric. A hollow body
cavity forms an interior compartment designed to hold an 8-ounce
infant feeding bottle. This line of merchandise is marketed as
"Baby Buddies." For the purposes of this letter, we will
sometimes refer to the sample item as "Baby Buddy."
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ISSUES:
Whether the subject bear figure should be classified as a
toy under heading 9503, HTSUSA, or as a made up article of
textile under heading 6307, HTSUSA?
If the article is classified as a toy, should it be
classified as stuffed or as non-stuffed?
LAW AND ANALYSIS:
The General Rules of Interpretation (GRIs) set forth the
legal framework in which merchandise is to be classified under
the HTSUSA. GRI 1 requires that classification be determined
first according to the terms of the headings of the tariff and
any relative section or chapter notes and, unless otherwise
required, according to the remaining GRI's taken in order.
Heading 9503, HTSUSA, provides, in pertinent part, for
"[o]ther toys." The Explanatory Notes to Chapter 95 indicate
that "[t]his chapter covers toys of all kinds whether designed
for the amusement of children or adults." The phrase, "designed
for the amusement of" is generally understood to indicate that
the use of an article will be a factor when classification as a
toy is being considered.
Additional U.S. Rule of Interpretation 1(a), HTSUSA,
provides that, absent language to the contrary, the following
applies:
[A] tariff classification controlled by use
(other than actual use) is to be determined
in accordance with the use in the United States
at, or immediately prior to, the date of
importation of goods of that class or kind to
which the imported goods belong and the
controlling use is the principal use.
Therefore, in order to be classified as a toy, the Baby Buddy
would need to be principally used for amusement. Customs defines
principal use as that use which exceeds each other single use of
the article.
Here, it is our determination that the principal use of the
subject Baby Buddy will be as a toy. In Ideal Toy Corp. v.
United States, 78 Cust. Ct. 28, C.D. 4688 (1977), the court
stated that "[W]hen amusement and utility become locked in
controversy, the question becomes one of determining whether the
amusement is incidental to the utilitarian purpose, or the
utility purpose incidental to the amusement." This item has the
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appearance and play value of any toy, plush bear and can
therefore be used for amusement without being used as a bottle
holder. If the item is used as a bottle holder, however, it will
continue to provide amusement and a sense of companionship to the
child. In this instance, the primary value of the item is its
play value; the utilitarian aspect of the merchandise is
incidental to the amusement factor. Thus, the subject item is
classified under heading 9503, HTSUSA, the provision for other
toys.
The next question to be determined concerns whether the Baby
Buddy should be classified as a stuffed toy or as a toy that is
not stuffed. It is Customs position that a toy is considered
stuffed for tariff purposes if the stuffing materials impart the
shape and form to the torso of the figure. Customs has also held
that the "feel" of an item may be relevant to the determination
as stuffed or non-stuffed. In this instance, stuffing material
does not impart the shape and form of the torso of the figure.
Nor does the torso of the item feel as if it is stuffed. The
torso of the Baby Buddy basically has no form; it has the
appearance and feel of an empty shell with either no stuffing or
a very minimal amount of stuffing material.
HOLDING:
The subject Baby Buddy is classifiable under subheading
9503.49.0020, HTSUSA, the provision for toys representing animals
or non-human creatures, other, toys not having a spring
mechanism, other. The applicable duty rate is 6.8% ad valorem.
You are instructed to deny the protest, except to the extent
reclassification of the merchandise as indicated above results in
a partial allowance. A copy of this decision should be attached
to the Form 19 to be returned to the protestant.
Sincerely,
John Durant, Director
Commercial Rulings Division