CLA-2 RR:CR:GC 959749 MMC
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