CLA-2 CO:R:C:F 089955 STB
District Director of Customs
555 Battery St.
P.O. Box 2450
San Francisco, CA 94126
RE: Decision on Application for Further Review of Protest No.
2809-91-100706, filed April 17, 1991, concerning the
classification of a plush snow leopard from Korea.
Dear Sir:
This is a decision on a protest filed April 17, 1991,
against your decision in the classification and liquidation of a
plush snow leopard identified as item 46296, entry made December
24, 1990, and liquidated on March 29, 1991.
FACTS:
The merchandise at issue consists of a plush stuffed toy
representation of a leopard. The tail of the figure is curved
around and attached to the body of the figure by means of a sewn
stitch which consists of two pieces of thin string. The
submission by the importer and the product specifications sheet
provided with the submission describe the tail as being "tacked"
down to the side of the body. The catalog page submitted by the
importer depicts the snow leopard with an untacked tail and the
tail protruding out from the body.
When the figure is measured with the tail tacked to the
body, the measurements are approximately 13 inches (32 cm) in
height, 10 inches (25 cm) in width, and 23 inches (59 cm) in
length. When the tail is untacked and laid straight out, the
length of the figure increases to approximately 33 inches (84
cm); when the tail is not held straight out, but allowed to fall
naturally, the length is approximately 29 inches (74 cm). The
other measurements remain the same.
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ISSUE:
Whether the stuffed snow leopard should be measured with its
tail tacked and thus be eligible for duty free treatment under
subheading 9902.95.02, HTSUSA, as a stuffed animal not exceeding
63.5 cm in length, width, or height or whether it should be
measured with the tail untacked in which case it will exceed the
allowed measurement and not be eligible for duty free treatment.
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's). 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 GRI's may
then be applied. The Explanatory Notes (EN's) to the Harmonized
Commodity Description and Coding System, which represent the
official interpretation of the tariff at the international level,
facilitate classification under the HTSUSA by offering guidance
in understanding the scope of the headings and GRI's.
In this instance, classification can be accomplished by
reference to GRI 1. Subheading 9503.41.10, HTSUSA, provides for
other toys, toys representing animals and parts and accessories
thereof, stuffed toys and parts and accessories thereof, stuffed
toys. The snow leopard at issue fits within this provision.
Articles that are classifiable under subheading 9503.41.10,
HTSUSA, may be eligible for duty free treatment under subheading
9902.95.02, HTSUSA. Subheading 9902.95.02, HTSUSA, provides for
stuffed or filled toys representing animals or nonhuman
creatures, not having a spring mechanism and not exceeding 63.5
cm (approximately 25 inches) in either length, width, or height
(provided for in subheading 9503.41.10 or 9503.49.00).
Headquarters Ruling Letters (HRLs) 086099, dated March 28,
1990, and 087118, dated August 13, 1990, stated Customs position
on the measurement of stuffed animals as follows:
It is Customs position that the measurement of a
toy animal figure is determined essentially by its
construction. When imported in a fixed, unadjustable
position, the length, width, or height is determined
by measuring the toy figure in its fixed standing,
sitting, or other position. However, when the toy
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figure is imported in an adjustable condition, the
length, width, or height is determined by adjusting
the toy to its normal upright or standing position
(i.e., the position that the stuffed animal will most
likely be used in) and measuring it from the highest
point of its head to the lowest point on its feet.
In this instance, of course, we are not concerned with height; it
is not the measurement from the head to the feet that will change
depending on the position of the tail, but rather the measurement
from end to end.
It is our determination that the proper measurement of this
merchandise, for classification purposes, is the measurement
taken with the tail untacked and either held straight out or
allowed to fall in its most likely position; although the tail
usually tends to curve slightly when allowed to fall on its own,
it also sometimes rests in a straight position and, over time,
will probably straighten out more. By either method the snow
leopard measures well over the 63.5 cm (or 25 inches) allowed in
subheading 9902.95.02, HTSUSA, and thus does not qualify for duty
free entry.
In arriving at this determination, we have considered
several factors. Although the tail is tacked to the side of the
body, the temporary nature of this attachment indicates that the
animal is imported with its tail in an "adjustable condition."
Only two thin pieces of string - not plastic or some other less
breakable material - connect the tail to the side of the body.
As mentioned supra, the product specifications sheet for this
item describes the tail as being "tacked" down to the side of the
body. The Webster's New World Dictionary, Third College Edition,
1988, at pp. 1361-62 defines the verb form of the word "tack" as
"2a) the act of fastening, esp. in a slight or temporary way,
b) sewing a stitch...later removed" and "to attach temporarily,
as by sewing with long stitches." All of these definitions
stress the temporary nature of the tacking process. In this
instance, one quick snip of the scissors or one hard pull by an
individual is all that is needed to make the tail free of the
tacking without any resulting harm to the article.
Since we have determined that the snow leopard is imported
in an "adjustable condition", we next discuss what will be "the
position that the stuffed animal will most likely be used in",
i.e., its "normal" position. In his submission of April 9, 1991,
the importer states that since "most stuffed animals are for
children", if the tail is not tacked, children will often grab
the animal by the tail and damage the article. While this
contention by the importer might demonstrate one reason to so
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attach the tails of all stuffed animals (which is not done) we
note that the tacking in this instance is probably not sufficient
to withstand the rough play of children. If there is no
intention that the tail not be pulled free, it should be attached
in a much firmer method, perhaps down the entire length of the
tail. As for the aesthetic impact of the tail being curved
around the body, also mentioned by the importer, we discovered by
manipulating the sample that the tail can be posed around the
body without being attached. A further indication that the snow
leopard is intended to be used and displayed with a free tail is
the fact that it is depicted in the importer's catalog with its
tail free, untacked and protruding out from the back of the
animal. While the importer argues that this catalog picture is
an inadvertence resulting from an untacked sample being the only
sample available at the time of catalog production, we feel it is
but one more factor demonstrating that "the position that the
stuffed animal will most likely be used in" will be with the tail
untacked. We also note that the importer, had he so desired,
could have temporarily posed the snow leopard with the tail
curved around the body, for catalog purposes, without the need
for the tacking.
HOLDING:
The article identified as "plush snow leopard", item 46296,
is classified in subheading 9503.41.1000, HTSUSA, the provision
for toys representing animals or non-human creatures, stuffed
toys, dutiable at 6.8% ad valorem. Since the figure exceeds 63.5
cm in length when adjusted to its normal position, it is not
entitled to duty-free entry under subheading 9902.95.02, HTSUSA.
The protest should be denied. A copy of this decision
should be attached to the Form 19 to be returned to the
protestant.
Sincerely,
John Durant, Director
Commercial Rulings Division