HQ 953911: Decision on Application for Further Review of Protest No.3001-93-100034, filed January 20, 1993, concerning theclassification of a toy animal puppet identified as "Ralf."

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 953911

                        October 29, 1993


CLA-2  CO:R:C:F  953911  GGD

CATEGORY:  Classification

TARIFF NO.:  9503.49.0020

District Director of Customs
1000 Second Avenue, Suite 2200
Seattle, Washington 98104-1049

RE:  Decision on Application for Further Review of Protest No.
3001-93-100034, filed January 20, 1993, concerning the
classification of a toy animal puppet identified as "Ralf."  

Dear Sir:

     This is a decision on a protest timely filed on January 20,
1993, against your decision in the classification of numerous
entries made in 1992, of "Ralf" toy animal puppets.

FACTS:

     You classified the merchandise under subheading
9503.49.0020, Harmonized Tariff Schedule of the United States
Annotated (HTSUSA), the provision for other toys representing
animals or non-human creatures, other than stuffed, not having a
spring mechanism.  Protestant claims that the merchandise should
be classified under subheading 9503.41.1000, HTSUSA, the
provision for other toys representing animals or non-human
creatures, stuffed toys; and that the goods should be free of
duty under subheading 9902.95.02, HTSUSA, which provides for the
suspension of duty on entries of stuffed toy animals made on or
prior to December 31, 1992.

     The sample article is a textile hand puppet, designed and
shaped to somewhat resemble a beagle dog.  When hand-supported in
a sitting position, the item measures approximately 16 inches in 
                               -2-

height by 35 inches in width (from outstretched forepaw to
forepaw).  The puppet's forelegs are disproportionately long,
approximately three times as long as the hind legs.  The article
appears to be constructed of a plush knit fabric.  An opening in
the lower abdomen allows a person's hand and forearm to be
inserted into the head and hollow torso, respectively, from which
the figure's mouth and face may be manipulated.  Although the
fore and hind legs, and to a minimal extent, the head, are
stuffed with a nonwoven, polyester fiberfill material, the torso
contains no stuffing material whatsoever. 

ISSUE:

     Whether the toy animal puppet is properly classified in
subheading 9503.41.10, HTSUSA, as a stuffed toy animal; or in
subheading 9503.49.00, HTSUSA; as a toy animal that is not
stuffed.

LAW AND ANALYSIS:

     Classification under the HTSUSA 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 HTSUSA by offering guidance
in understanding the scope of the headings and GRIs.

     Customs and the protestant agree that the article is a toy
animal.  The proper heading is thus clear, i.e., heading 9503 for
toys.  The subheadings at issue essentially differentiate between
toy animals that are stuffed, and those which are not stuffed.  

     In determining whether a toy representing an animal or non-
human creature is stuffed for tariff purposes, it is Customs
long-standing position that the stuffing materials must impart
the shape and form of the item's torso.  Customs has also held
that the "feel" of an article may be relevant to the
determination as stuffed or non-stuffed.  This position is based, 
                               -3-

in part, on the dictionary definition of the verb "stuff," which
was adopted in Customs Information Exchange Ruling (C.I.E.)
449/46, issued August 7, 1946.  The cited definition is as
follows:

          Stuff, v. I.t.  1. To fill to distention by crowding
          something into; cram; pack full; as, to stuff a trunk
          full of clothes; to stuff the head with knowledge.  2.
          Specif., to fill with material specially prepared for
          such use; as, to stuff a cushion, to stuff a fowl for
          cooking.  3. In taxidermy, to fill out with suitable
          material (the skin of a bird or beast), and arranged so
          as to make a life-like form.  4. To cram into a small
          space; crowd; as, to stuff a newspaper into one's
          pocket.  5. To fill full or distend by crowding or
          being crowded into; often with out; as the strangers
          stuffed the gallery; the sawdust stuffs out the doll's
          body.

     In Headquarters Ruling Letter (HRL) 089334, issued August
26, 1991, this office considered the tariff classification of a
toy animal puppet similar to the "Ralf" article.  In that case,
although the shell covering the puppet's torso contained a small
amount of stuffing material, the toy animal was held to be not
stuffed.  After citing the definition above, we stated that:

          It is apparent that the emphasis of the above
          definition is upon the filling and/or distending of the
          article that is "stuffed."  There is a generous use of
          words and phrases such as "cram," "crowd," and "pack
          full."  Customs has reiterated its acceptance of the
          above definition on many occasions since the C.I.E.
          ruling was published, and has not altered its rather
          strict standards concerning the "stuffed"
          classification of articles similar to the item at
          issue.

In HRL 952634, issued March 29, 1993, a protest involving the
same toy animal puppet classified in HRL 089334, and essentially
the same issue presented here, was denied in full.  

     The protestant posits that requiring a figure's torso to be
stuffed or filled in order for the item to be deemed "stuffed"
for tariff purposes is illogical unless applied to dolls only,
since their torsos must generally represent those of human 
                               -4-

beings.  Protestant states that animals and non-human creatures,
such as spiders and octopi, often have torsos that are not nearly
as prominent as their other body parts.  The protestant asserts
that, since Ralf's stuffed legs are the figure's most prominent
features, the fact that the torso contains no stuffing or filling
materials should not preclude classifying the figure as a
"stuffed" toy.

     The protestant also claims that the toy figure must be
classified by application of GRI 3, since:  1) no definition or
description of "stuffed" appears in the terms of the headings, or
in any relative section or chapter notes; and  2) the figure is a
composite article, comprised of stuffed and non-stuffed portions. 
The protestant submits the results of tests performed on the
"Ralf" article by a private laboratory, which indicate that the
item is 63.5 percent stuffed by weight, and 70.7 percent stuffed
by volume.  In light of these percentages and the prominence of
the figure's stuffed legs, the protestant extrapolates that the
toy's essential character is provided by its stuffed portions. 

     To further support the propriety of a GRI 3 analysis,
protestant cites HRL 084637, issued August 23, 1989, which in
turn quotes HRL 084118, issued April 13, 1989.  The rulings
involve classification issues presented when garments are
comprised of both knit and woven portions, or both textile and
non-textile components, which in most cases, would preclude
classification by application of GRI 1.  

     In HRL 084637, Customs established criteria (claimed to be
relevant here) which, in certain instances, would call for a GRI
3(b) or 3(c) analysis.  As noted in the ruling, the criteria are
applicable only to the classification of body garments, and only
when neither portion (knit or woven) or component (textile or
nontextile), comprises at least 60 percent of the visible surface
area of the garment.  A condition precedent to the application of
GRI 3, is an inability to properly classify the merchandise
solely by reference to GRI 1, and the subsequent GRIs taken in
their appropriate order.  The presence of both stuffed and non-
stuffed portions in this toy figure does not render it a
composite article, and the analysis directed by GRI 3 is
inapplicable.

     The protestant avers that, even if Customs determines that
"Ralf" is not "stuffed," the toy animal still meets the broader
definition of a "filled" toy, as set forth in U.S. Note 6 of
Subchapter II, Section XXII, HTSUSA, which states that: 
                               -5-

          For the purposes of heading 9902.95.02, the term
          "filled" includes toy figures which are not completely
          filled or are filled with materials such as plastic
          beads or crushed nutshells but which otherwise possess
          the characteristics of toy figures classifiable as
          "stuffed".

With emphasis on the "not completely filled" phrase in U.S. Note
6, petitioner infers that as long as some portions of a toy
figure contain some filling material, a toy animal with a hollow
torso qualifies as "filled."  We do not read the phrase in
isolation from the remainder of U.S. Note 6, however, and find
that toy figures which are not completely filled must still
possess the characteristics of toy figures classifiable as
"stuffed."

     Although the authors of the U.S. Note have provided little
guidance to assist in interpreting the meaning of the term
"stuffed," we find that logic and consistency are best served
when determinations as to whether toy figures are stuffed, are
based upon what imparts the shape and form of the item's torso. 
While the "feel" of the toy figure may be relevant, the relative
prominence of the torso in comparison to other body parts is not. 
A toy animal or non-human creature whose torso is not shaped and
formed by stuffing/filling materials is not a stuffed toy for
classification purposes, regardless of the size or number of
appendages emanating from the non-stuffed torso.  

     In this case, the stuffing materials do not impart the shape
or form of the toy animal puppet.  The puppet's torso consists of
an empty cavity designed for the insertion of a human arm and
hand, not stuffing material.  For tariff classification purposes,
the presence and quantity of stuffing material in Ralf's limbs
and head are irrelevant in determining whether or not the toy is
stuffed.  It is the lack of any stuffing material in the toy
animal's torso that brings about a non-stuffed quality and
feeling, and precludes classifying the toy as stuffed. 

HOLDING:

     The item identified as "Ralf," a toy animal puppet, is
properly classified in subheading 9503.49.0020, HTSUSA, the
provision for other toys representing animals or non-human 
                               -6-

creatures (for example, robots and monsters) and parts and
accessories thereof, other, toys not having a spring mechanism,
other.  The applicable duty rate is 6.8 percent ad valorem. 

     The protest should be denied in full.  A copy of this
decision should be attached to the Form 19 to be returned to the
protestant.

     In accordance with Section 3A(11)(b) of Customs Directive
099 3550-065, dated August 4, 1993, Subject:  Revised Protest
Directive, this decision should be mailed by your office to the
protestant no later than 60 days from the date of this letter. 
Any reliquidation of the entry in accordance with the decision
must be accomplished prior to mailing of the decision.  Sixty
days from the date of the decision, the Office of Regulations and
Rulings will take steps to make the decision available to Customs
personnel via the Customs Rulings Module in ACS, and to the
public via the Diskette Subscription Service, Lexis, the Freedom
of Information Act and other public access channels.


                               Sincerely,


                                 

                               John Durant, Director
                               Commercial Rulings Division