CLA-2 CO:R:C:G 086831 CB
District Director of Customs
U.S. Customs Service
909 First Avenue
Room 2039
Seattle, Washington 98174
RE: Request for Further Review of Protest No. 3001-90-00049
Dear Sir:
Protest and request for further review were timely filed
against the liquidation of entry number N16-0108021-4 covering
shipments of a plush animal shaped comforter.
FACTS:
The instant merchandise is identified as a Wubie. It
consists of a plush toy that can be posed in a stuffed animal
configuration. The fill for the animal is designed to be folded
out into a comforter or quilt for sitting or napping. When
opened all that remains of the animal is the head and paws. The
blanket has a 100 percent cotton shell and is filled with 100
percent non-woven man-made fibers.
ISSUE:
Whether the subject merchandise is classifiable as an
article of bedding under heading 9404, HTSUSA, or as a toy in
heading 9503, HTSUSA?
LAW AND ANALYSIS:
It is the importer's contention that the Wubies are
classifiable as toys under subheading 9503.49.0020, HTSUSA, based
on a New York ruling (824587 issued November 25, 1987) which
classified a Wubie as a toy under the Tariff Schedule of the
United States Annotated (TSUS). Congress has appropriately
indicated that earlier tariff rulings must not be disregarded in
applying the HTSUSA. The conference report to the Omnibus Trade
Bill states that "on a case-by-case basis prior decisions should
be considered instructive in interpreting the HTS[USA],
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particularly where the nomenclature previously interpreted in
those decisions remain unchanged and no dissimilar interpretation
is required by the text of the HTS[USA]." H. Rep. No. 100-576,
100th Cong., 2d Sess. 548 (1988) at 550 (emphasis added).
It has consistently been Customs position that merchandise
such as the one at issue is classified as articles of bedding
under heading 9404, HTSUSA. In HRL 082520, issued September 20,
1988, a comforter which folded into a bunny with stuffed ears and
feet was classified under 9404.90.9020, HTSUSA. Similar
merchandise was also the subject of HRL 082601, issued October
17, 1988, which classified a comforter which folded into a doll
as an article of bedding.
In the instant case a ruling was issued under the HTSUSA.
HRL 084333, dated July 20, 1989, classified a Wubie under
subheading 9404.90.9010, HTSUSA, as an article of bedding. The
decision was reached that under the HTSUSA the merchandise
qualified as a composite good and an essential character
determination was made. The ruling held that the essential
character was imparted by the comforter because it would be used
as an article of bedding and that the comforter is also used as
the stuffing for the animal portion. The toy portion is
incidental to the comforter.
Thus, in the instant case, reliance on a previous TSUS
ruling is unfounded. The TSUS did not provide for the
requirement of an essential character determination. Therefore,
the HTSUSA with the requirement of determining essential
character makes the TSUS rulings no longer operative because a
dissimilar interpretation is required.
HOLDING:
As a result of the foregoing, the Wubies are classifiable
under subheading 9404.90.9010, HTSUSA, which provides for
mattress supports; articles of bedding...stuffed, other, other,
of cotton. You should DENY this protest in full. A copy of this
decision should be forwarded to the law firm of Barnes,
Richardson & Colburn.
Sincerely,
John Durant, Director
Commercial Rulings Division