HQ 085409: Classification of "Bear Bellies"

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 085409

                        December 28, 1989


CLA-2 CO:R:C:G 085409  WAW

CATEGORY:  Classification

TARIFF NO.:  9503.41.1000

M. Barry Levy, Esq.
Sharretts, Paley, Carter & Blauvelt, P.C.
67 Broad Street
New York, NY  10004

RE:  Classification of "Bear Bellies"

Dear Mr. Levy:

     This ruling is in response to your letter dated August 31,
1989, requesting the tariff classification of "Bear Bellies,"
under the Harmonized Tariff Schedule of the United States
Annotated (HTSUSA).  Samples were submitted with your request.

FACTS:

     The subject merchandise, known as a "Bear Belly," consists
of two components.  One component is a toy bear that measures
approximately 8-3/4 inches in height, 9-1/4 inches in width at
its widest point, and 5-1/4 inches in depth at its deepest point.
The front legs of the bear extend sideways from the torso to give
the appearance of arms and its rear legs protrude forward in such
a manner as to enable the bear to sit up when placed on a flat
surface.  The bear's stomach area contains a cylindrical hole
which holds the other component of the Bear Belly.  The hole has
a diameter of approximately 2-1/4 inches.  The bear is
completely covered with a plush furry fabric except for its
facial features and has a ribbon tied in a bow around its neck.
The bear is stuffed with filler materials.

     The other component of the Bear Belly is a small toy which
fits snugly in the hole situated in the stomach area of the toy
bear.  There are four different types of toys that can be fit
into the stomach area:  one toy emits a sound when it is
squeezed, another one rattles when it is shaken, a third has a
plastic mirror, and the fourth has a plastic figure of a bear
that spins around inside a sealed plastic spherical container.
Each tummy toy is at least partially covered with a plush furry
fabric that complements the covering of its corresponding toy
bear.  The tummy toys may be removed and reinserted into the
bears' stomachs, but they cannot be completely separated from
their respective bears since they are attached to each bear by a
ribbon.

ISSUE:

     What is the proper classification of the sample merchandise
under the HTSUSA?

LAW AND ANALYSIS:

     The General Rules of Interpretation (GRI's) set forth the
manner in which merchandise is to be classified under the HTSUSA.
GRI 1 requires that classification be determined first according
to the terms of the headings of the tariff and any relative
section or chapter notes and, unless otherwise required,
according to the remaining GRI's, taken in order.

     When goods are prima facie classifiable under two or more
headings GRI 3 is applicable.  In this case classification is
determined by application of GRI 3(b) which provides for the
classification of composite goods.  GRI 3(b) states that:

     Mixtures, composite goods consisting of different
     materials or made up of different components, and goods
     put up in sets for retail sale, which cannot be
     classified by reference to 3(a), shall be classified as
     if they consisted of the material or component which
     gives them their essential character, insofar as this
     criterion is applicable.

The Explanatory Notes constitute the official interpretation of
the tariff at the international level.  Explanatory Note (IX) to
GRI 3(b) states the following:

     For the purposes of this Rule, composite goods made up
     of different components shall be taken to mean not only
     those in which the components are attached to each
     other to form a practically inseparable whole but also
     those with separable components, provided these
     components are adapted one to the other and are
     mutually complementary and that together they form a
     whole which would not normally be offered for sale in
     separate parts.

     In the instant case, the Bear Bellies qualify as a
composite good made up of different components within the meaning
of GRI 3(b).  The small toy component is designed to fit snugly
inside the cylindrical hole in the bear's stomach area.  A ribbon
is attached to both the Bear Belly and the toy stomach component
so that the two items form a practically inseparable whole.
Furthermore, the two components are physically adapted to one
another, are mutually complementary in appearance, design, and
function, and form a whole which, by virtue of the way in which
the components are adapted to each other, would not normally be
offered for sale in separate parts.  Accordingly, since the
subject merchandise is a composite good, it is properly
classifiable under the component which imparts the essential
character of the item.

     According to Explanatory Note (VIII) to GRI 3(b), the
essential character of an item is determined by the following
criterion:

     The factor which determines essential character will
     vary as between different kinds of goods.  It may, for
     example, be determined by the nature of the material or
     component, its bulk, quantity, weight or value, or by
     the role of a constituent material in relation to the
     use of the goods.

     In the instant case, the toy bear is clearly the component
which imparts the essential character of the composite good.  The
toy bear constitutes the greater portion of the bulk of the
entire article than the tummy toy component.  In addition, the
toy bear weighs approximately five ounces, whereas the tummy toys
weigh between 1/2 and 1-1/2 ounces.  Thus, the toy bear
constitutes the majority of the weight of the article.  Likewise,
the toy bear constitutes the majority of the value of the entire
article.  Overall, consumers who want to buy an inexpensive toy
such as a rattle or a squeeze toy are not going to want to spend
the money to buy a Bear Belly; however, consumers who want to buy
a toy bear may well consider the purchase of a Bear Belly.

     Furthermore, Customs does not consider the removable toy
component as a bar to classification of the product as a
"stuffed" animal for tariff purposes.  The mere presence of a
hole in the stomach of the stuffed toy does not detract from the
commercial reality of the figure as a "stuffed" toy.
Accordingly, it is our position that the subject article is
properly classifiable under subheading 9503.41.1000, HTSUSA,
which provides for toys representing animals or non-human
creatures (for example, robots and monsters) and parts and
accessories thereof: stuffed toys.

HOLDING:

     The sample "Bear Bellies" are properly classifiable under
subheading 9503.41.1000, HTSUSA.  Moreover, the subject
merchandise is subject to duty free treatment under subheading
9902.95.02, HTSUSA, which provides for stuffed or filled toy
figures of animate objects (except dolls), not having a spring
mechanism and not exceeding 63.5 cm in either length, width, or
height (provided for in subheading 9503.41.1000, HTSUSA).

                                   Sincerely,



                                   John Durant, Director
                                   Commercial Rulings Division