CLA-2 OT:RR:CTF:TCM H065119 CkG
Category: Classification
Port Director
U.S. Customs and Border Protection
301 E. Ocean Blvd. Suite 1400 Long Beach, CA 90802
Re: Revocation of HQ 087133; classification of stuffed bear coin bank
Dear Port Director:
This letter is to inform you that Customs and Border Protection has reconsidered Headquarters Ruling Letter (HQ) 087133, issued to you on October 18, 1990, regarding the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of a stuffed bear coin bank. In HQ 087133, CBP classified the bear bank in heading 6307, HTSUS, as an “other” made up article. We have reconsidered this ruling and have determined that it is incorrect.
HQ 087133 is a decision on a specific protest. A protest is designed to handle entries of merchandise which have entered the U.S. and been liquidated by CBP. A final determination of a protest, pursuant to Part 174, Customs Regulations (19 CFR 174), cannot be modified or revoked as it is applicable only to the merchandise which was the subject of the entry protested. Furthermore, CBP lost jurisdiction over the protested entries in HQ 087133 when notice of disposition of the protest was received by the protestant. See, San Francisco Newspaper Printing Co. v. U.S., 9 CIT 517, 620 F.Supp. 738 (1935).
However, CBP can modify or revoke a protest review decision to change the legal principles set forth in the decision. Pursuant to section 625(c)(1), Tariff Act of 1930 [19 U.S.C. 1625(c)(1)], as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub.L. 103-182, 107 Stat. 2057), 60 days after the date of issuance, CBP may propose a modification or revocation of a prior interpretive ruling or decision by publication and solicitation of comments in the CUSTOMS BULLETIN. This revocation will not affect the entries which were the subject of Protest 2704-89-002117, but will be applicable to any entries of similar merchandise made 60 days after publication of the final notice of revocation in the CUSTOMS BULLETIN.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. §1625(c)(1)), as amended by section 623 of Title VI, notice proposing to revoke HQ 087133 was published on March 31, 2010, in Volume 44, Number 14 of the Customs Bulletin. CBP received no comments in response to the notice.
FACTS:
The subject article is described in HQ 087133 as follows:
The submitted sample, item #0225, is a partially stuffed bear figure measuring approximately 8-1/2 inches in height and 7 inches in width. The head and appendages of the bear are stuffed, while the torso incorporates a hollow plastic container for the holding of coins. The sample contains a coin slot and bottom plug for the removal of coins. Its exterior is made of soft plush pile fabric.
ISSUE:
Whether the subject article is a toy of heading 9503, HTSUS, or a made up article of heading 6307, HTSUS.
LAW AND ANALYSIS:
Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes and, provided such headings or notes do not otherwise require, according to the remaining GRIs 2 through 6.
The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The HTSUS provisions under consideration are as follows:
6307: Other made up articles, including dress patterns:
6307.90: Other:
Other:
6307.90.98: Other . . . . . . . . . . .
* * * * *
9503: Tricycles, scooters, pedal cars and similar wheeled toys; dolls’
carriages; dolls, other toys; reduced-scale (“scale”) models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof…..
9503.00.00: Other………….
* * * * *
EN 95.03 states, in pertinent part:
D) Other toys.
This group covers toys intended essentially for the amusement of persons (children or adults)….This group includes:
Educational toys (e.g., toy chemistry, printing, sewing and knitting
sets).
Toy money boxes; babies; rattles, jack-in-the-boxes; toy theatres with or without figures, etc.
Certain toys (e.g., electric irons, sewing machines, musical instruments, etc.) may be capable of a limited use; but they are generally distinguishable by their size and limited capacity from real sewing machines, etc.
* * * * *
Although the term “toy” is not defined in the HTSUS, EN 95.03 provides that heading 9503, HTSUS, covers toys intended essentially for the amusement of persons. U. S. v. Topps Chewing Gum, 58 CCPA 157, C.A.D. 1022 (1971) (hereafter Topps), is illustrative in determining whether an article is intended for the amusement of the user. In Topps, various decorative buttons with humorous quotes were classified as toys of heading 9503. 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. Therefore, an article may be considered a toy if it is inherently or evidently amusing. See HQ 959749, dated October 23, 1997; HQ 960136 (July 24, 1997); HQ 963907 (July 12, 2001); and HQ 964834 (May 23, 2002).
Where merchandise might have another purpose in addition to providing amusement, the primary purpose of the item must be its amusement value for it to be classified as a toy. In Minnetonka Brands v. United States, 110 F. Supp. 2d 1020, 1026 (CIT 2000), the court held that an object is a toy only if it is designed and used for amusement, diversion or play, rather than practicality. In Ideal Toy Corp. v. United States, 78 Cust. Ct. 28, 33 (1977), the Customs Court similarly held that “when 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 is incidental to the amusement.”
In HQ 088983, dated August 12, 1991, a plush bear approximately eight inches in height constructed of plush man-made textile fabric with a hollow body cavity that formed an interior compartment designed to hold an 8-ounce infant feeding bottle, was classified in heading 9503, HTSUS. We found that the bear bottle warmer had “the 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.” See also NY M87270, dated October 27, 2006; NY L88374, dated October 27, 2005; and NY D88231, dated February 24, 1999. Similarly, we find that a stuffed bear bank is likely to be used much in the same way that any stuffed animal would be used—for comfort, companionship, and amusement.
We therefore do not agree that the commercial viability of the item depends on the item functioning as a bank. The article is commercially viable as a stuffed bear alone. Therefore, it is classified in heading 9503, HTSUS.
HOLDING:
By application of GRI 1, the subject article is classified in subheading
9503.00.00, HTSUS, which provides for “Tricycles, scooters, pedal cars and similar wheeled toys; dolls’ carriages; dolls, other toys; reduced-scale (“scale”) models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof: Other.” The 2009 column one, general rate of duty is Free.
Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov/tata/hts/.
EFFECT ON OTHER RULINGS:
HQ 087133, dated October 18, 1990, is hereby revoked.
In accordance with 19 U.S.C. §1625(c), this ruling will become effective 60 days after publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director,
Commercial and Trade Facilitation Division