CLA-2 RR:CR:TE 964006 SG
Ms. Mary B. Lind
Pioneer International Customhouse Brokerage, Inc.
687 Commercial
San Francisco, CA 94111
RE: Stuffed Pillow-like Articles in Form of a Baseball Cap, Baseball Shirt, Bird or Duck, and Horseshoe Shaped Bear; Pillows; Stuffed Toys
Dear Ms. Lind:
This is in reply to your letter, dated February 4, 2000, to the U.S. Customs Service office in New York, on behalf of Franktex, Inc. and Pioneer Int’l CHB Inc., requesting a binding ruling concerning the classification, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of pillow-like objects shaped like a baseball cap, a baseball shirt, a bird or duck, and a horseshoe shaped bear. You submitted a sample of each article for examination and refer to them in your correspondence as “character toy-like cushions”. Your letter, together with the samples, was referred to this office for reply.
FACTS:
The merchandise consists of four pillow-like articles of different designs. The first article, identified as item 299657, is in the shape of a baseball cap. The dome section measures 12-inches across and is approximately 7 inches thick. It has a 4-inch wide brim, which is about ½ inch thick. A Boston Red Sox “B” is embroidered on the front panel of the dome. The outer shell is made from a polyester knit fabric. It is stuffed with a polyester fill.
The second article, identified as item 299658, resembles a stuffed v-neck short-sleeved baseball shirt. It is composed of the same materials as the hat (with the exception of the pile polyester fabric filling in the neck area) and features an embroidered “Red Sox” logo on the front. The baseball shirt measures approximately 13 inches by 17 inches with 6-inch short sleeves. It is approximately 6 inches thick.
The third item is a horseshoe shaped bear, referred to as item 2-99617. It is made of polyester pile and knit fabric and is stuffed with polyester fill. It has a plastic nose and eyes. The two ends of the item are embroidered to resemble paws and has a stuffed bear’s head wearing a halo attached to one side. It measures approximately 14 inches across by 5 inches wide and 5 inches thick.
The final item, described as a “green, beaked, bird-like animal”, is identified as item 2-99612. It is composed of different polyester fabrics, mainly plush, and is stuffed with a polyester fill. It has plastic eyes. The bird-like creature is full figured and appears to be wearing a cap and shirt printed with the word “Pirates”. Neither the cap nor shirt is removable. It is approximately 24 inches long, 15 inches wide and 5 inches thick. This figure includes a stuffed, fairly block-shaped torso with a stuffed head, beak and appendages. It is configured in such a way as to form a rectangular-shaped article. These features make this article eminently suitable for use in a stretched out and prone position on its stomach and impractical for use in any other position.
ISSUE:
What is the proper classification for these stuffed articles?
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is made in accordance with the General Rules of Interpretation (GRI). 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 GRIs may then be applied. The Harmonized Commodity Description and Coding System, Explanatory Notes (ENs), represent the official interpretation of the Harmonized System at the international level (for the 4 digit headings and the 6 digit subheadings) and facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRIs.
The HTSUS provisions under consideration are as follows:
Other made up articles, including dress patterns:
Other:
6307.90.99 Other
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:
Other:
Pillows, cushions and similar furnishings:
9404.90.2000 Other
9503 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:
9503.41.00 Stuffed toys and parts and accessories thereof
9503.90.00 Other
Heading 9404, HTSUS, provides for articles of bedding and similar furnishings (for example-mattresses, quilts, eiderdowns, cushions, pouffes and pillows) fitted with springs or stuffed.
A pillow is defined by Webster’s Third New International Dictionary, Unabridged (1986) as “1 a: something used to support the head of a person resting or sleeping; esp.: a sack or bag made typically of cloth and filled with a soft or resilient material (as feathers, down, hair, sponge rubber): CUSHION.”
In defining cushions and pillows The Random House Dictionary of the English Language, the Unabridged Edition (1983) states at p. 357 “CUSHION, PILLOW, BOLSTER agree in being cases filled with a material more or less resilient, intended to be used as supports for the body or parts of it. A CUSHION is a soft pad used to sit, lie, or kneel on, or to lean against: a number of cushions on a sofa; cushions on pews in a church. A PILLOW is a bag or case filled with feathers, down, or other soft material, usually to support the head: to sleep with a pillow under one’s head….”
Where pillow-like objects have been of sufficient size or stuffing to offer support, or where the construction is such that the shape or material would make it comfortable or likely to be used as a support for the body; classification in heading 9404, HTSUSA is not precluded.
The size, shape, and textures of the “character toy-like cushions” provide a clear invitation for children and adults to relax, snuggle, lean against, and sprawl upon. Their attraction and function is similar to the merchandise of HQ 963390, dated November 24, 2000, which referred to pillow-like articles called Pillow Buddies®, designed and shaped to resemble cartoon characters and which possessed some toy features. This seems to be similar to the use of cushions as defined above. In our opinion, cuddly novelty or specialty pillows in the shapes of different figures or objects are principally marketed and used as pillows. In addition, we note that the horseshoe shaped bear cushion is similar to the neck support pillow which was classified in HQ 952690, dated January 14, 1993, because it supports the neck and the back and the side of the head.
Based upon the above, the samples at issue here are described within the provisions of heading 9404, HTSUS. We must now consider whether they are also described within the provisions of heading 9503, HTSUS, as claimed.
Chapter 95, HTSUSA, covers toys of all kinds, whether designed for the amusement of children or adults. Although the term “toy” is not specifically defined in the tariff, the ENs to Chapter 95, indicate that this chapter covers toys of all kinds whether designed for the amusement of children or adults.
The court in United States v. Topps Chewing Gum, Inc., 58 CCPA 157, C.A.D. 1022 1971), found that an article may be a toy if it meets the following definition:
While they may lack the material features to be a manipulative plaything as such, and will likely be used as an interesting or novelty decorative utility object, it is clear that the article, with its cartoon-like, comical appearance, or scary look is designed primarily for amusement purposes and as a source of frivolous entertainment for children and adults. In other words, its appearance generates the same type of emotional reaction one derives from playing with objects commonly recognized as toys and this use is its principle use.
Where merchandise might have another purpose in addition to providing amusement, the primary purpose of the item must be its amusement value in order to be classified as a toy. See HQ 960479, dated November 24, 2000 (the primary use of a pillow-like article designed to resemble various animals and creatures is in its amusement value and not in its use as a pillow-like object); HQ 958785, dated July 26, 1996 (a “Lean On Me Activity Bolster” for a small child was properly classifiable in heading 9503 because the primary use of the item was as a toy); and HQ 951309, dated April 26, 1993 (the primary value of M & M novelty figures designed as lids for containers filled with candy was the play value; the utilitarian aspect of the merchandise is temporary and incidental to the amusement factor).
Customs has classified in subheadings 9503.41 through 9503.49, HTSUSA, the provisions for toys representing animals or non-human creatures, those toy animals or creatures, which are full, or reasonably full-figured depictions of the animals or creatures which they seek to represent. The figures must be fully configured in the sense that they are an articulation of the character in three dimensions, i.e. a representation in a sculptured form. See HQ 951533 (June 17, 1992), HQ 95760 (October 123, 1995), and HQ 957617 (May 3, 1995).
Neither the baseball cap nor the baseball shirt samples have any representation of a character, animal or creature. There are no faces or appendages, thus no features to relate them to an animate object, nor do they amuse. Therefore, we find that the baseball cap and baseball shirt pillows do not meet the description of toys under heading 9503, HTSUS.
Both the horseshoe shaped bear and bird-like animal samples basically, although not completely, meet the criterion of a toy as described above. The construction of these figures includes a stuffed head with eyes, nose, snout or beak and ears, and stuffed torsos. The samples are generally designed and constructed to lie in a flat position, as would any pillow-like object. The shapes of the articles enable them to be used as a floor, bed, or neck pillow while watching TV, reading, relaxing, or napping. Because of their designs, the anatomy of the articles are not completely
and fully delineated into the sculpted fully three-dimensional animals they seek to portray.
In addition, in order for the articles to be classified as toys they must be principally designed for amusement. It is our view that the shapes, colors, and designs of the bear and bird are designed to amuse. It therefore appears that these two articles may have a dual purpose, for use as a pillow-like object, and as a toy. See, Headquarters Ruling Letter HQ 960480, dated November 24, 2000, concerned Pillow Buddies®, stuffed pillow-like articles in the form of a variety of animals and objects, which are very similar to the sample before us here. In that case we noted that sample was a reasonably full-figured depiction of the animal it represented. In addition, the article could be used for support, as for example, if placed along the spine of a chair to provide support to the lower back. The filling did not merely provide shape to the pillow, but also offered support. Based upon observation of how this article was actually used by the ultimate consumers (children), we determined that the primary use of this article was in its amusement value and not in its use as a pillow-like object. Its cartoon-like amusing appearance, and soft, manipulative polyester fleece skin made it suitable as an object of amusement or plaything. It was determined that it would be principally used as a toy and its use for any other purpose would be secondary. This appears to be the case with the sample of the bird-like object before us too. For these reasons it is our opinion that the bird-like article meets the requirements of a toy animal or creature and is classifiable in heading 9503, HTSUS.
However, insofar as the horseshoe shaped bear is concerned, it is our view that its size, shape, and construction would make it quite likely to be used to offer support and comfortably cradle a person’s head and neck, and awkward for use as a toy. Accordingly, the horseshoe shaped bear pillow-like article is more akin to a neck pillow than a toy. See HQ 952690. It is therefore properly classifiable as a pillow under heading 9404, HTSUS.
Heading 6307, HTSUS, provides for other made up articles of textiles. It is a basket provision wherein a variety of merchandise is classified when no other heading more specifically provides for given merchandise. Since each of the instant articles was classifiable in another heading of the tariff, heading 6307, HTSUS does not capture the merchandise.
HOLDING:
The bird or duck like sample, of 100% polyester fabric, and stuffed with polyester fibers, is classifiable in subheading 9503.41.0000, HTSUSA, 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…: Stuffed toys and parts and accessories thereof.” It is neither subject to quota nor to duty.
The baseball cap and shirt samples, both of 100% polyester fabric, and stuffed with polyester fibers, are classifiable in subheading 9404.90.2000, HTSUSA, which provides for: 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...[o]ther... [p]illows, cushions and similar furnishings...[o]ther." The general column one rate of duty is 6 percent ad valorem. There is no textile quota category applicable to this provision.
If made of cotton, the baseball cap and shirt pillows would be classifiable in subheading 9404.90.1000, HTSUSA. The general column one rate of duty would be 5.5 percent ad valorem, the quota category would be 369.
The horseshoe shaped bear sample, of 100% polyester fabric, and stuffed with polyester fibers, is also classifiable in subheading 9404.90.2000, HTSUSA.
Sincerely,
John Durant, Director
Commercial Rulings Division