CLA-2 R:C:F 957560 GGD

Scott E. Rosenow, Esquire
Stein Shostak Shostak & O'Hara
1620 L Street, N.W., Suite 807
Washington, D.C. 20036-5605

RE: Reconsideration of DD 899337; "Playfaces Stuffed Toy Pillows;" 3 Dimensional, Pillow-Like, "Soft Sculptures" of Cartoon Characters' Faces; Other Made Up Textile Articles; Not Other Toys

Dear Mr. Rosenow:

This letter is in response to the request of your client, Play-By-Play Toys & Novelties, dated January 17, 1995, for reconsideration of Newark District Ruling Letter (DD) 899337, issued July 1, 1994, concerning the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of articles identified as "Playfaces." In DD 899337, Customs classified the merchandise (in 1994) in subheading 6307.90.9986 (now 6307.90.9989), HTSUSA, the provision for "Other made up articles, including dress patterns: Other: Other: Other, Other: Other." Sample articles, imported from China and featuring the cartoon characters "Bugs Bunny" and "Sylvester" the cat, were submitted with the request. Subsequent to the request and submission, a conference was held with Headquarters personnel on May 24, 1995. You submitted additional written materials dated May 30, 1995, which have been received and considered.

FACTS:

The samples are pillow-like articles that are designed and shaped to resemble only the heads/faces of the cartoon characters "Bugs Bunny" and "Sylvester" the cat. The outer surfaces are composed of man-made, filament woven fabric. The colorful fabric -2-

is stuffed, presumably with polyester fiber, giving the articles a soft, resilient feel. The sample items measure approximately 22 inches by 24 inches by 8 inches. Each has a textile loop (for carrying or suspending the article) and a few three-dimensional features such as whiskers, ears, a patch of fur on the top of the head, etc.

The inquirer states that marketing will be directed toward children for their amusement, and a brochure photographically depicts numerous "Playfaces," several with children lying on and cuddling with the articles. A copy of a retail license agreement between the inquirer and Warner Bros. Consumer Products was submitted and states that mass market sales of the licensed products may be through toy buyers only, not home furnishings buyers. In marketing information provided prior to the issuance of NYRL 899337, however, the inquirer relates that the goods may, on occasion, be sold to home furnishing departments as pillows.

ISSUE:

Whether the merchandise is properly classified in heading 6307, HTSUS, as other made up textile articles, or in heading 9503, HTSUS, as other toys.

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the harmonized system is such that virtually all goods are classified by application of GRI 1, that is, 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 Explanatory Notes (ENs) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRIs.

Heading 9503, HTSUS, applies to "other toys," i.e., all toys not included in headings 9501 and 9502. Although the term "toy" is not specifically defined in the tariff, the ENs to chapter 95, HTSUS, indicate that the chapter covers toys of all kinds whether designed for the amusement of children or adults. The ENs to heading 9503, HTSUS, indicate that the heading includes toys representing animals or non-human creatures, even if possessing predominantly human physical characteristics (e.g., angels, -3-

robots, devils, monsters). Customs will classify a stuffed toy representing an animal or non-human creature in subheading 9503.41, HTSUS, if the toy is a reasonably full-figured depiction of the animal's or creature's anatomy that the toy seeks to represent. The representation must be constructed in a sculpted, three dimensional form.

Mindful of these criteria in Headquarters Ruling Letter (HRL) 951533, issued June 17, 1992, this office classified a stuffed, pillow-shaped article bearing a flat, screen-printed image of the "Beast" character (from the movie "Beauty and the Beast") in heading 6307, HTSUS. Although the article featured two arms and a pair of horns, we found that there was no multidimensional articulation of the head, legs, or feet of the non-human creature being portrayed. In the case at hand, the stuffed articles represent only the heads/faces of animals or non-human creatures, and are not reasonably full-figured depictions of animal anatomies. Thus, they are not classifiable in subheading 9503.41, HTSUS.

Noting that chapter 95, HTSUS, covers "toys of all kinds," you contend that the "Playfaces" are clearly designed principally for amusement, and suggest that the articles are most specifically classified in subheading 9503.90.6000, HTSUSA, as other toys not having a spring mechanism. You point out that the items are largely based upon cartoon or television characters, and assert that the use of vibrant colors (amusing to children), plush materials (e.g., velvet), loops for hanging, and irregular features (e.g., whiskers), are alien to articles principally designed for comfort, such as pillows.

You also cite to New York Ruling Letter (NYRL) 824586, issued August 27, 1987, in which stuffed, pillow-shaped objects with imprinted facial representations of "Santa" and "Christmas Mouse," were classified in item 737.98, Tariff Schedules of the United States (TSUS), the provision for other toys not specifically provided for.

Aside from the fact that NYRL 824586 was issued under the TSUS, a tariff with rules of interpretation and application different from those of the HTSUS, the items subject to that ruling were less than one half the size of the "Playfaces" (measuring approximately 10-1/2 inches by 10-1/2 inches). "Santa" and "Christmas Mouse" also featured body appendages, i.e., arms, legs, ears, tail, etc., that were found to "contribute substantially to their primary value of amusement." Looking at their size, those items appear to have offered far less than the "Playfaces" with respect to comfort. -4-

We also disagree that bright colors, velvet materials, loops for hanging, or irregular features, are alien to, or somehow detract from the comfort providing aspects of an item. Not all merchandise that amuses is properly classified in a toy provision. Although the appearance of the "Playfaces" is somewhat amusing, the size, shapes, and textures of the articles, in addition to the marketing noted above, provide a clearer invitation for children to relax, snuggle, and sprawl upon their favorite cartoon or television characters than to play with the items. We thus find that the "Playfaces" are not principally designed for amusement and are not classifiable in heading 9503, HTSUS.

Heading 6307, HTSUS, covers other made up textile articles, including dress patterns. Note 1(t) to Section XI (the section in which chapter 63 falls) states that "[t]his section does not cover: Articles of chapter 95 (for example, toys, games, sports requisites and nets)." The ENs to heading 6307 indicate that the heading covers made up articles of any textile material which are not included more specifically in other headings of Section XI or elsewhere in the Nomenclature. We find that the "Playfaces" were properly classified (in 1994) in subheading 6307.90.9986 (now 6307.90.9989), HTSUSA, the provision for "Other made up articles, including dress patterns: Other: Other: Other, Other: Other."

HOLDING:

The articles identified as "Playfaces Stuffed Toy Pillows" were properly classified (in 1994) in subheading 6307.90.9986 (now 6307.90.9989), HTSUSA, the provision for "Other made up articles, including dress patterns: Other: Other: Other, Other: Other." The applicable duty rate is 7 percent ad valorem.

DD 889337, issued July 1, 1994, is hereby affirmed.


Sincerely,

John Durant, Director
Tariff Classification
Appeals Division