CLA-2 OT:RR:CTF:TCM H161002 TNA
Port Director, Service Port-Los Angeles/Long Beach Seaport
U.S. Customs and Border Protection
301 E. Ocean Blvd. Suite 1400 Long Beach, CA 90802
Attn: Don Dorsett, Import Specialist
Re: Application for Further Review of Protest No: 2704-11-100050; Pillow Pets
Dear Port Director:
The following is our decision regarding the Application for Further Review (“AFR”) of Protest No. 2704-11-100050, timely filed on January 5, 2011, on behalf of CJ Products, LLC (“CJ Products” or “Protestant”). The AFR concerns the classification of “Pillow Pets” under the Harmonized Tariff Schedule of the United States (“HTSUS”). We have also considered arguments you presented in a conference with members of my staff on December 22, 2011.
FACTS:
The subject merchandise consists of a number of models of “Pillow Pets,” which are stuffed articles that depict various types of animals such as unicorns, bumble bees, alligators, cows, dogs, and ducks. They are constructed with a man-made fiber pile fabric, and each contains a three-dimensional head with facial features such as eyes, nose, ears, snout and antenna as appropriate to the model. Each model also comes in various colors as appropriate to the creature it portrays, and certain models have three dimensional features unique to their creature, such as yellow wings on the butterfly. These features appear on the top of the merchandise, while the bottom of each model is flat, without any defined appendages. The “feet” of each creature are depicted by squares of different color fabric that appear on each end of the torso.
The torso itself is a rectangular or square-shaped cushion that, when open, functions as a pillow. The cushion closes by way of a rectangular piece of fabric attached on one side of the cushion that attaches to a piece of hook-and-loop fastener on the other side of the cushion. When closed this way, the cushion is folded in half and allows the “Pillow Pet” to stand on its own. The larger sizes of the subject merchandise measure 18” long by 12” wide when closed and 18” long by 17” wide when opened. The smaller sizes of the subject merchandise measure 11” long by 9” when opened and 11” long by 7” wide when closed. A sample of the larger bumble bee “Pillow Pet” was obtained and examined by this office; multiple samples of the smaller versions of the “Pillow Pets” were also furnished during the December 22 conference.
The subject merchandise entered on September 23, 2009 and October 29, 2009 under subheading 9503.00.00, HTSUS, as a toy. U.S. Customs and Border Protection (“CBP”) liquidated the merchandise on July 16, 2010, and July 9, 2010, respectively, in subheading 9404.90.20, HTSUS, as “Pillows, cushions and similar furnishings.” The importer filed this protest and AFR on January 5, 2011, claiming classification as entered in subheading 9503.00.00, HTSUS.
ISSUE:
Whether “Pillow Pets” are classified as toys of heading 9503, HTSUS, or as pillows of heading 9404, HTSUS?
LAW AND ANALYSIS:
Initially, we note that this matter is protestable under 19 U.S.C. §1514(a)(2) as a decision on classification. The protest was timely filed, within 180 days of liquidation for entries made on or after December 18, 2004. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)).
Further Review of Protest No. 2704-11-100050 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(a) because the Port’s decision is alleged to be inconsistent with a ruling of CBP’s Commissioner or by his designee, or with a decision made at any port with respect to the same or similar merchandise. Specifically, the Protestant argues that the Port’s liquidation was inconsistent with HQ 964723, dated April 20, 2001, and NY N067495, dated July 21, 2009.
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes.
The HTSUS headings under consideration are the following:
9404 Mattress supports; articles of bedding and similar furnishing (for example, mattresses, quilts, eiderdowns, cushions, pouffes and pillows) fitted with springs or stuffed or internally fitted with any material or of cellular rubber or plastics, whether or not covered:
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
In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System, which constitute the official interpretation of the HTSUS at the international level, 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. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The EN to heading 9404, HTSUS, states, in pertinent part, the following:
This heading covers:
…
(B) Articles of bedding and similar furnishing which are sprung or stuffed or internally fitted with any material (cotton, wool, horsehair, down, synthetic fibres, etc.), or are of cellular rubber or plastics (whether or not covered with woven fabric, plastics, etc.).
The EN to heading 9503, HTSUS, states, in pertinent part, the following:
This heading covers :
…
(D) Other toys.
This group covers toys intended essentially for the amusement of persons (children or adults). However, toys which, on account of their design, shape or constituent material, are identifiable as intended exclusively for animals, e.g., pets, do not fall in this heading, but are classified in their own appropriate heading. This group includes:
…
(i) Toys representing animals or non-human creatures even if possessing predominantly human physical characteristics (e.g., angels, robots, devils, monsters), including those for use in marionette shows.
Protestant argues that the subject merchandise is akin to the “Pillow Buddies” classified in HQ 962131, dated November 2, 2000. There, the merchandise consisted of pillow-like articles designed and shaped to resemble various animals and creatures, such as a mini frog, mini lion, mini gray rabbit, among others. Most models measured approximately 15 inches long (including tails) by 9 inches at the widest point and 2 1/2 inches thick. They consisted of stuffed, block-shaped torsos onto which appendages such as heads, tails, and scales were attached; flat and plain undersides; and arm, leg, and paw appendages which were stuffed but configured in such a way as to form, with the torso, a rectangle shaped article. CBP classified these “Pillow Buddies” as stuffed toys under subheading 9503.41.00, HTSUS. Citing HQ 962131, Protestant argues that the subject “Pillow Pets” are reasonably full-figured depictions of the animals they seek to represent.
Protestant also argues that the subject “Pillow Pets” are similar to the ladybug pillow that was classified in HQ 964984, dated July 2, 2001. There, the merchandise consisted of a pillow, the outer shell of which was made from woven polyester fabric and stuffed with a polyester fiberfill. It measured approximately 14 x 16 inches and was oval shaped. The top was cut, sewn and appliquéd to depict the features of a ladybug. Two 4-inch long antenna and six 2 x 2.5 inch “legs” completed the design. After considering classification as a pillow in heading 9404, HTSUS, CBP classified the ladybug pillow as a toy in heading 9503, HTSUS. There, we reasoned that its bright colors, floppy protruding antenna and legs, and unrealistic enormous size was comical in appearance. We therefore concluded that the ladybug pillow was designed primarily for amusement purposes and as a source of entertainment, and that as a result, it met the definition of a toy espoused by the court in United States v. Topps Chewing Gum, Inc. See United States v. Topps Chewing Gum, Inc., 58 C.C.P.A. 157, CAD 1022 (1971). Protestant argues that the subject “Pillow Pets” contain the same toy-like characteristics of the ladybug pillow, and should therefore be classified as toys in heading 9503, HTSUS, in accordance with HQ 964984.
Lastly, in the December 22 conference, Protestant also compared the subject merchandise to that of HQ 964723, dated April 20, 2001 (classifying stuffed pillow-like articles in a variety of animals that also incorporated games as toys of heading 9503, HTSUS); HQ 962131, dated November 2, 2000 (classifying stuffed pillow-like articles in a variety of animal forms as toys of heading 9503, HTSUS); HQ 964006, dated October 24, 2001 (classifying a stuffed pillow-like article in the form of a bird or duck as a toy of heading 9503, HTSUS, among other articles); HQ 964690, dated October 23, 2001 (classifying oversized body pillows in the form of various animals as toys of heading 9503, HTSUS); HQ H065119, dated May 11, 2010 (classifying a stuffed bear coin bank as a toy of heading 9503, HTSUS); NY I89415, dated January 9, 2003 (classifying stuffed animal cushions as toys of heading 9503, HTSUS); NY H83219, dated July 27, 2001 (classifying a sleeping bag in heading 9404, HTSUS, and its accompanying stuffed teddy bear/pillow as a toy of heading 9503, HTSUS); NY G83577, dated October 30, 2000 (classifying stuffed animal bath toys as toys of heading 9503, HTSUS); NY G87870, dated March 23, 2001 (classifying a stuffed “Knotty Animal” as a toy of heading 9503, HTSUS). Protestant argues that the subject merchandise, like the merchandise of these rulings, should be classified as a toy of heading 9503, HTSUS. At the December 22 conference, Protestant also submitted a number of marketing materials to show that the “Pillow Pets” are advertised as toys in many stores and online.
In response, we begin by noting that Additional U.S. Rule 1 states, in pertinent part, the following:
In the absence of special language or context which otherwise requires—
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
In several court cases that have defined the term “toy,” heading 9503, HTSUS, has been found to be a principal use provision. In United States v. Topps Chewing Gum, Inc., 58 C.C.P.A. 157, CAD 1022 (1971), the court defined “toy” as “any article chiefly used for the amusement of children or adults.” United States v. Topps Chewing Gum, Inc., 58 C.C.P.A. 157, CAD 1022 (1971). In Minnetonka Brands v. United States, 24 C.I.T. 645; 110 F. Supp. 2d 1020; 2000 Ct. Intl. Trade LEXIS 87; SLIP OP. 2000-86 (Ct. Int’l. Trade 2000) (“Minnetonka”), the court held that “an object is a toy only if it is designed and used for amusement, diversion or play, rather than practicality.” Minnetonka Brands v. United States, 24 C.I.T. 645; 110 F. Supp. 2d 1020; 2000 Ct. Intl. Trade LEXIS 87; SLIP OP. 2000-86 (Ct. Int’l. Trade 2000). In Ideal Toy Corp. v. United States, 78 Cust. Ct. 28; 1977 Cust. Ct. LEXIS 952 (Cust. Ct. 1977), the court reiterated the Topps court’s definition of a toy, and stated 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 incidental to the amusement.” Ideal Toy Corp. v. United States, 78 Cust. Ct. 28; 1977 Cust. Ct. LEXIS 952 (Cust. Ct. 1977).
Furthermore, in Louis Marx and Co., Inc., v. United States, 66 Cust. Ct. 139, C.D. 4183 (1971) (“Louis Marx”), the court concluded that (1) that the term “figures of animate objects” included only those figures which represent living beings; and (2) that since the subject merchandise consisted of figures that represent plant life with human characteristics, they are not figures of animate objects for tariff purposes. Louis Marx and Co., Inc., v. United States, 66 Cust. Ct. 139, C.D. 4183 (1971). While Louis Marx concerned subheading 737.30, Tariff Schedules of the United States (TSUS), this tariff provision corresponds to subheading 9503.00.00, HTSUS. See Conversion of the Tariff Schedules of the United States Annotated into the Nomenclature Structure of the Harmonized System, USITC Publication 1400, 31 (June 1983). In addition, in rulings issued under the HTSUS, CBP has held that the phrase “figures of animate objects” refers to a clearly defined configuration of an animate object in a three-dimensional form. We have therefore found 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. See, e.g., HQ 963390, dated November 24, 2000; HQ 951533, dated June 17, 1992, HQ 957560, dated October 12, 1995.
Finally, Minnetonka found that heading 9503, HTSUS, is a principle use provision. Minnetonka, 24 C.I.T. 645, 651. As a result, to determine whether the “Pillow Pets” are principally used as toys, we analyze them according to the factors laid out in United States v. Carborundum Co., 63 C.C.P.A. 98, 102, 536 F.2d 373, 377 (1976). These factors include (1) the general physical characteristics of the merchandise; (2) the expectation of the ultimate purchasers; (3) the channels, class or kind of trade in which the merchandise moves; (4) the environment of the sale (i.e., accompanying accessories and the manner in which the merchandise is advertised and displayed); (5) usage, if any, in the same manner as merchandise which defines the class; (6) the economic practicality of so using the import; and (7) the recognition in the trade of the use. See Carborundum, 63 C.C.P.A. 98.
In the present case, we apply the Carborundum factors as follows:
1. general physical features: the physical characteristics of toys are that they are designed to amuse. Topps Chewing Gum, Inc., 58 C.C.P.A. 157. When they are figures of animate objects, they must be reasonably full-figured depictions of live animals and soft, sculptured edition or three-dimensional articulation of the animal’s head, torso, and appendages. Louis Marx, 66 Cust. Ct. 139; HQ 963390; HQ 951533; HQ 957560. Here, the heads of the subject merchandise are three-dimensional, as are some of the appendages such as the wings on the bumblebee sample received by our office. The Pillow Pets’ legs and torso only resemble the legs and torsos of the creatures they represent more so in the upright position because they are differently colored. The rounded edges of a rectangle do not necessarily resemble an animal’s feet or legs, and a rectangular cushion does not necessarily resemble the torso of an animal; however, the corners of the cushion appear more akin to feet or legs on the smaller version of the Pillow Pets than on the larger models. Thus, especially for the smaller versions when they are in the upright position, the Pillow Pets are reasonably full-figured depictions of the animals/creatures they depict, in that they are a soft, sculptured edition of these animals that are designed to amuse. Thus, this factor falls in favor of classification as toys.
2. channels of trade, 3. environment of sale, and 4. expectation of ultimate consumers: We note that the importer’s commercial invoice lists the Pillow Pets as “folding cushions.” Furthermore, they are named “Pillow Pets,” which suggests use as a pillow rather than as a toy. User reviews on the internet, however, show that the Pillow Pets are frequently used as toys. See, e.g., www.amazon.com. The Pillow Pets are also sold at many stores that sell toys. In addition, at the December 22 conference, Protestant submitted evidence showing that in many stores, the Pillow Pets are sold in the toy section of the store in both physical stores and online. See, e.g., www.amazon.com; www.toysrus.com; www.walgreens.com; www.target.com. As a result, these factors fall in favor of classification as toys.
5. actual usage and 6. recognition in trade: Again, user reviews of the subject merchandise show that users actually use the subject Pillow Pets as toys. Furthermore, advertising of the subject merchandise shows that in the trade, the Pillow Pets are recognized as toys. As a result, these factors fall in favor of classification as toys.
7: economic practicality of using the Pillow Pets: the Pillow Pets are usually sold in the $16-$20 range. See, e.g., www.target.com; www.amazon.com; www.mypillowpets.com. This is well within a reasonable price range for toys, as there are a myriad of toys that can be less or more expensive. Id. Thus, it is economically practical for consumers to purchase the Pillow Pets as toys. As a result, after examining the Carborundum factors, we conclude that the Pillow Pets are classifiable in heading 9503, HTSUS, because they belong to the class or kind of goods known as toys.
However, pillows of heading 9404, HTSUS, function to increase comfort and allow individuals to lounge or recline with more comfort and support. See HQ 964954, dated April 18, 2002. The subject Pillow Pets consist of a rectangular cushion that is meant to support a person’s head as he sleeps. It is soft and filled, providing comfort to the user. As a result, we find that the Pillow Pets are described by the terms of heading 9404, HTSUS, as pillows. This interpretation is consistent with the exemplars of EN 94.04. As a result, CBP has classified a range of cushions that support the body and increase comfort in heading 9404, HTSUS.
Yet, because the Pillow Pets provide amusement value and are often marketed, sold and bought as toys, they are also described by heading 9503, HTSUS. In addition, CBP’s prior rulings have recognized that similar merchandise has a dual function of pillows and as toys. See HQ 964167, dated December 3, 2001; see also HQ 964006. As such, the Pillow Pets cannot be classified at GRI 1. Because GRI 2 is inapplicable here, the analysis moves on to GRI 3. GRI 3 provides, in pertinent part, that:
When, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:
(a) The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods…
(c) When goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.
Protestant argues that if the subject merchandise cannot be classified under GRI 1, it should be classified under heading 9503, HTSUS, by way of GRI 3(a). We agree. In determining which of the two headings at issue is more specific, we note that courts have held that the general rule of customs jurisprudence is that, “in the absence of legislative intent to the contrary, a product described by both a use provision and an eo nomine provision is generally more specifically provided for under the use provision.” Orlando Food Corp. v. United States, 140 F.3d 1437, 1441 (Fed. Cir. 1998) (quoting United States v. Siemens Am., Inc., 68 C.C.P.A. 62, 653 F.2d 471, 477 (CCPA 1981)). However, this rule is not obligatory, and only provides a “convenient rule of thumb for resolving issues where the competing provisions are otherwise in balance.” United States v. Carl Zeiss, 195 F. 3d at 1380 (1999) (quoting United States v. Siemens Am., Inc., 653 F.2d at 478 n. 6); see also Totes Inc. v. United States, 69 F.3d 495, 500 (Fed. Cir. 1995).
In the present case, heading 9404, HTSUS, is an eo nomine provision, while heading 9503, HTSUS, is a use provision. Thus far, these competing provisions have been in balance with one another, as each equally describes the subject merchandise. However, Protestant has submitted evidence showing that the subject merchandise is used as a toy; the Pillow Pets’ marketing, user reviews, etc., all establish their use as a toy. Thus, the Pillow Pets satisfy the terms of heading 9503, HTSUS. As a use provision, heading 9503, HTSUS, is more specific than heading 9404, HTSUS. Therefore, heading 9503, HTSUS, more specifically provides for the subject merchandise than heading 9404, HTSUS. As a result, the Pillow Pets are classified as toys of heading 9503, HTSUS. This classification is consistent with prior CBP rulings. See HQ 964723; HQ 962131; HQ 964006; HQ H065119; HQ 964690; HQ 964167, dated December 3, 2001; HQ 963390, dated November 24, 2000; NY I89415; NY H83219; NY G83577.
Protestant further argues that if the classification of the subject merchandise could not be resolved at GRI 3(b), GRI 3(c) would resolve the issue in favor of heading 9503, HTSUS, because it is the later heading in the tariff schedule. While we agree with Protestant’s analysis, classification in heading 9503, HTSUS, has been resolved at GRI 3(a), so we do not reach GRI 3(c).
HOLDING:
By application of GRI 3(a), the subject “Pillow Pets” are classified in heading 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.” The column one, general rate of duty is free.
You are instructed to ALLOW the protest.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division