HQ H275175
September 5 2017
CLA-2 OT: RR: CTF: CPM H275175 MG
Mr. David Prata
OHL International
CVS Health Mail Code 1049
1 CVS Drive
Woonsocket, RI 02895
RE: Revocation of NY N264243; Tariff Classification of decorative plush figures
Dear Mr. Prata:
U.S. Customs and Border Protection (CBP) issued CVS/Pharmacy New York Ruling Letter (NY) N264243 on May 22, 2015. NY N264243 pertains to the tariff classification under the Harmonized Tariff Schedule of the United States (HTSUS) of decorative plush figures in two styles: Mickey Mouse and Minnie Mouse. We have since reviewed the tariff classification of the subject decorative plush figures and find it to be in error.
In arriving at this conclusion, this office took into consideration additional product information and marketing materials, which were provided by the manufacturer of the merchandise at issue in NY N264243. Two samples were provided to this office from the manufacturer. One depicted Buzz Lightyear, a character from the movie “Toy Story”, and the other depicted the Japanese animated cat “Hello Kitty” holding a jack-o-lantern. NY N264243 classified the two examples, Mickey and Minnie Mouse, from this larger product line, collectively referred to by the manufacturer and counsel as “Greeters”. The instant ruling classifies the entire “Greeters” product line, each of which are substantially similar to one another. The Greeters are manufactured by Gemmy Industries (HK) Limited and imported by Gemmy US.
On November 9, 2016, 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 of the proposed action was published in the Customs Bulletin Vol. 50, No. 45. On December 9, 2016, a comment in support of this revocation was received in response to that notice. Final notice of the action was published in the Customs Bulletin Vol. 51, No. 32, on August 9, 2017. After further review, we have determined that HQ H275175 included a clerical error at the statistical level of the tariff classification of the subject merchandise. Pursuant to Customs Regulations, 19 CFR §177.12(d)(2)(i), publication is not required for a ruling modifying a clerical error within sixty days of publication. Therefore, this letter constitutes the final revocation of NY N264243 and will not be published in the Customs Bulletin, but will appear on the Customs Rulings Online Search System (CROSS).
FACTS:
NY N264243 states the following:
You have submitted two samples of item number 932257 which you describe as “Halloween Greeters.” The Halloween Greeters are plush, decorative figures which will be imported in two styles: Mickey Mouse (#63692) and Minnie Mouse (#59937). Both Halloween Greeters are approximately 22” tall and have textile heads, stuffed hands and firm torsos. The legs have paperboard dowels which extend through the torso and the feet are filled with stone powder to keep the figure upright. You state the material composition of each figure is 55 percent textile, 30 percent stone powder and 15 percent paper. You state in your letter that the supplier has proposed to classify the items under subheading 9503.00.0073, Harmonized Tariff Schedule of the United States, (HTSUS), which provides for toys. However, the Halloween Greeters are not toys principally designed for amusement. Rather, they are household decorative articles designed and intended to be used as display items near one’s door to greet trick-or-treaters. Moreover, the items will be sold in the seasonal aisle of CVS/pharmacy stores. In addition, the item’s construction, stone powder in the feet along with hard pillars for legs to maintain an upright position, also distinguish these items from a class or kind of goods classifiable as toys. Alternatively, you suggest in your letter that the correct classification of these items may be subheading 9505.90.6000, HTSUS, which provides for festive articles. Although you state the figures will be sold during the Halloween selling season, a commonplace pirate motif, assuming these figures can be recognized as such, is not closely associated with a specific festive occasion, nor is the physical appearance of a generic pirate so intrinsically linked to a specific festive occasion that its use at other times would be considered aberrant.
The applicable subheading for the Mickey Mouse (style #63692) and Minnie Mouse (style #59937) decorative Halloween Greeters, item number 932257, will be 6307.90.9889, HTSUS, which provides for “Other made up textile articles, including dress patterns: Other: Other: Other: Other: Other.” The rate of duty will be 7 percent ad valorem.
ISSUE:
Whether the subject Greeters are classified in the textile provision for other made up articles, in heading 6307, HTSUS, or whether they are classified as toys, of heading 9503, HTSUS, or whether they are classified as festive articles of heading 9505, HTSUS.
LAW AND ANALYSIS:
Classification under the HTSUS 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 HTSUS headings under consideration are the following:
6307 Other made up articles, including dress patterns:
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:
9505 Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof:
Note 1(t) to Section XI, which covers textile articles of heading 6307, HTSUS states:
This section does not cover:
(t) Articles of chapter 95 (for example, toys, games, sports requisites and nets)
The Explanatory Notes (ENs) 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 at the international level. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The EN 95.03 states the following, in relevant part:
This heading covers:
***
(D) Other toys
This group covers toys intended essentially for the amusement of persons (children or adults). …
These include:
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.
Note 1(t) to Section XI, which covers Chapter 63, specifically heading 6307, HTSUS, provides that if the subject merchandise is described as an article of Chapter 95, such as a doll or a toy, or a festive article, then it is excluded from Section XI. Therefore, our analysis begins with the scope of heading 9503, HTSUS, and heading 9505, HTSUS, respectively.
The tariff term “toy” is not statutorily defined. The courts and CBP construe statutorily undefined terms in accordance with their common and commercial meaning, which is presumed to be the same. See E.M. Chems. v. United States, 920 F.3d 910, 913 (Fed. Cir. 1990). However, the courts, through a series of decisions, have crafted a framework for “toys” of heading 9503, HTSUS, which guides CBP in the instant case.
In Springs Creative Products Group v. United States, 35 I.T.R.D. (BNA) 1955, Slip Op. 13-107 (Ct. Int’l Trade Aug. 16, 2013), the Court opined on the tariff classification of a child’s craft kit for making a fleece blanket. In its analysis, the CIT consulted dictionaries, and other reliable sources regarding the meaning of the word “toy.” See Medline Indus. v. United States, 62 F.3d 1407, 1409 (Fed. Cir. 1995)(“tariff terms are construed in accordance with their common and popular meaning, and in construing such terms the court may rely upon its own understanding, dictionaries and other reliable sources.”)(citations omitted).
First, the Court consulted Webster’s Third New International Dictionary of the English Language Unabridged (1981), at 2419, which provides, in relevant part that “toys” are:
3a: something designed for amusement or diversion rather than practical use b: an article for the playtime use of a child either representational (as persons, creatures, or implements) and intended esp. to stimulate imagination, mimetic activity, or manipulative skill or nonrepresentational (as balls, tops, jump ropes) and muscular dexterity and group integration.
Next, the Court cited Merriam Webster’s Collegiate Dictionary (1998) at page 41, which defines “amusement” in relevant part as, “3: a pleasurable diversion.” Thus, taken together “[t]his common meaning of toy – an object primarily designed and used for pleasurable diversion – is consistent with its judicial interpretation.” Springs Creative Products Group v. United States, supra at page 15, citing Processed Plastic Co. v. United States, 473 F.3d 1164, 1170 (Fed. Cir. 2006) (noting that the principal use of a “toy” is amusement, diversion, or play value rather than practicality); Minnetonka Brands, Inc. v. United States, 24 CIT 645, 651 ¶ 37, 110 F. Supp. 2d 1020, 1026 (2000) (noting that for purposes of Chapter 95, HTSUS, “an object is a toy only if it is designed and used for amusement, diversion, or play, rather than practicality”).
Factoring in the above, heading 9503, HTSUS, is a “principal use” provision governed by Additional U.S. Rule of Interpretation 1 (a), HTSUS, which provides that: 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. Group Italglass, U.S.A., Inc. v. United States, 17 CIT 1177, 839 F. Supp. 866 (1993). The Court in Group Italglass stressed “that it is the principal use of the class or kind of good to which the imports belong and not the principal use of the specific imports that is controlling under the Rules of Interpretation.” Group Italglass, 839 F. Supp. at 867. Principal use is defined as the use “which exceeds any other single use.” Automatic Plastic Molding, Inc., v. United States, 26 CIT 1201, 1205 (2002). The courts have provided factors, which are indicative but not conclusive, to apply when determining whether merchandise is classifiable under a particular “principal use” tariff provision. These include: general physical characteristics, the expectation of the ultimate purchaser, channels of trade, environment of sale (accompanying accessories, manner of advertisement and display), use in the same manner as merchandise which defines the class, economic practicality of so using the import, and recognition in the trade of this use. See United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F. 2d 373 (1976), cert. denied, 429 U.S. 979 (1976). While these factors were developed under the Tariff Schedule of the United States (the predecessor to the HTSUS), the courts, and this office have applied and continue to apply them to the HTSUS. See, e.g., Minnetonka Brands v. United States, supra; Aromont USA, Inc. v. United States, 671 F.3d 1310 (Fed. Cir. 2012), and see Essex Mfg., Inc. v. United States, 30 C.I.T. 1 (2006).
The Greeters at issue here are in the shape and form of recognizable licensed animated characters which appeal to children, e.g., Buzz Lightyear, Hello Kitty, Mickey and Minnie Mouse, Snoopy and Charlie Brown, and various Star Wars characters. Full-bodied plush figures, whether or not decorative, have limited utilitarian or practical function. Further, products featuring licensed animated characters which have amusing appearances or manipulative play value belong to a class or kind of merchandise that are principally designed for amusement. See NY N257974, dated October 30, 2014 (classifying “Soft Lites” Squish Toys, and other illumination toys) and NY N059599, dated May 12, 2009 (classifying various stuffed animals). The subject Greeters differ slightly from each other in their individual characteristics, such as limb articulation, and they are relatively large in comparison to smaller hand-held stuffed animals. However, neither of these factors is dispositive and on balance, the Greeters’ physical characteristics are that of a plush article of amusement.
The expectation of the ultimate purchaser, the channels of trade, and the environment of sale also weigh in favor of the Greeter’s classification as a toy. The Greeters are sold to myriad retailers that also sell toys, and their displayed location in the stores is alongside other toys. They are pleasing to the eye, provide amusement to onlookers, and would be a normal addition in a child’s bedroom or in a daycare environment.
Gemmy does not sell the subject merchandise direct to consumers, rather, Gemmy sells the Greeters to various retailers for sale to customers. On Gemmy’s website the Greeters are alternatively listed under the subcategory “Gifts” or “Décor.” However, their decorative function is subservient to their play value. Also, being decorative in nature does not preclude the products’ classification as a “toy,” as some large dolls are also stiff and decorative in nature.
In information provided to this office, Gemmy stated that the subject Greeters are tested and are in compliance with the Consumer Products Safety Improvement Act of 2008 (CPSIA), which mandates certain texting and certification requirements on imports of products for children. Though the considerations or findings of another agency’s statutes, regulations, or administrative interpretations are not binding on CBP for tariff classification purposes, they may be valuable, informative, and persuasive. See Inabata Specialty Chems. v. United States, 29 C.I.T. 419, 414 (Ct. Int’l Trade 005), citing Marubeni Am. Corp. v. United States, 17 C.I.T. 360, 821 F. Supp. 1521, 1528-29 (1993), aff’d, 35 F. 3d 530 (Fed. Cir 1994) (vehicle regulated as a “truck” by other agencies classified for tariff purposes as passenger vehicles). See also Sabritas v. United States, 22 C.I.T. 59 (Ct. Int’l Trade 1998). Here, the subject Greeters have been tested and determined to be safe pursuant to multiple tests which include lead content, phthalates content, or bisphenol-A (BPA) content. As the goods are sold in channels of trade which include other toys, (i.e., drug stores or other multi-purpose big box retailers), this is good news as a consumer would expect that the Greeters would be safe because they are tested in a similar manner to other toys for sale nearby.
It is worth noting that not every product which depicts a recognizable licensed animated character is a “toy” for tariff classification purposes. If the product does not promote pretend and role play, stimulate imagination, combat a child’s ennui, promote mimetic activity or provide the opportunity for children to develop manipulative skill or muscular dexterity, then it is not considered a “toy.” See Springs Creative Prods. Group v. United States, supra, at *18, citing Webster's Third New International Dictionary of the English Language Unabridged (1981) at 2419.
Further, not all goods which have some level of plush or soft interior are “toys” for tariff classification purposes. Products which are household decorations, but have some element of plush in them will not be classified as toys. See NY N243235, dated July 15, 2013 (classifying the textile Dancing Minnie Lighted Lawn Ornament); NY N207258, dated March 16, 2012 (classifying a textile decorative Mickey Mouse scarecrow, CBP determined that the article was not a toy principally designed for amusement, does not depict a human likeness, and thus is a household decorative article); NY N210135, dated April 6, 2012 (classifying a Bunny Lawn Stake, a woven textile fabric with straw coming out of its arms and legs, deemed not a festival, carnival or other entertainment article); NY M80260, dated February 8, 2006 (classifying textile standing bears). Pursuant to the above analysis, the subject Greeters are eo nomine “toys” under a GRI 1 analysis.
That said, some of the Greeters are dressed or adorned with details that indicate specific holidays (i.e., the Yoda Valentine Greeter which features the Jedi Master holding a heart that says “Yoda One For Me,” and a Chewbacca Valentine Greeter, with the Wookie holding a heart that says “Chewy Loves You”. Also, the Mickey and Minnie Mouse Greeters at issue in NY N264243 were dressed in a manner purportedly depicting a Halloween motif). This indicates that the products could be displayed only seasonally or during a specific holiday in order to promote a festive environment in the home or at a business. Pursuant to GRI 3(a), when goods are prima facie classifiable under two or more headings, classification shall be that which provides the most specific description. This is preferred to headings providing a more general description. “Under this so-called rule of relative specificity, we look to the provision with requirements that are more difficult to satisfy and that describe the articles with the greatest degree of accuracy and certainty.” Orlando Food Corp. v. United States, 140 F.3d 1437, 1441 (Fed. Cir. 1998).
Here, “toys” are more specific than the “festive articles” heading because the provision for toys covers a narrower set of items. “Toys” is limited to those items which have no utilitarian value, and which promote pretend play for children. “Festive articles” however, need only be closely associated with and used or displayed during a festive occasion. See Russ Berrie & Company, Inc. v. United States, 381 F.3d 1334, 1338 (Fed. Cir. 2004).
Because heading 9505, HTSUS, covers a far broader range of items than heading 9503, HTSUS, the latter is more specific than the former. It is also more specific because it describes items by name (“toys”) rather than by class (“festive articles”). Id. It therefore follows that the subject Greeters are classifiable under heading 9503, HTSUS.
For all of the aforementioned reasons, the subject decorative plush figures are classified in heading 9503, HTSUS, as toys. This is consistent with CBP rulings of other plush toys, which feature some models depicting holiday motifs. See NY N009125, dated April 13, 2007.
As the subject Greeters are classifiable in heading 9503, HTSUS, then they are excluded from classification in heading 6307, HTSUS, pursuant to the exclusionary language found in Note 1(t) to Section XI, which covers Chapter 63.
HOLDING:
By application of GRI 3(a) and GRI 1, the subject “Greeters” are classified in subheading 9503.00.0073, HTSUSA (Annotated), which provides for “toys” labeled or determined by importer as intended for use by persons 3 to 12 years of age. The 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 at www.usitc.gov/tata/hts/.
EFFECT ON OTHER RULINGS:
NY N264243, dated May 22, 2015, is hereby REVOKED, as regards the tariff classification of the decorative plush figures.
In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after publication in the Customs Bulletin.
Myles B. Harmon, Director
Commercial and Trade Facilitation Division