#  HQ 960479

November 24, 2000

CLA‑2 RR:CR:TE 960479 SG

CATEGORY: Classification

TARIFF NO.: 9503.41.0010

Port Director

U.S. Customs Service

200 East Bay Street

Charleston, S.C. 29401

Re: Application For Further Review of Protest No. 1601-97-100087;
Classification of Stuffed Pillow-like Articles in Form of Variety of
Animals; Pillow Buddies®: Pillows: Stuffed Toys

Dear Sir:

This is in response to the request for further review of a protest
timely filed on behalf of Crown Crafts, Inc., against your decision on
the proper classification of various stuffed articles depicting animals
or creatures trademarked as "Pillow Buddies®" which were imported from
Hong Kong. The Pillow Buddies® were classified when entered on October
3, 1996, as other made up textile articles in subheading 6307.90.9989,
Harmonized Tariff Schedule of the United States Annotated (HTSUSA). The
importer has protested the classification and claims the proper
classification of these articles is as stuffed toys under subheading
9503.41.0010, HTSUSA, or if not considered to be sufficiently stuffed,
as other toys representing animals or non-human figures under subheading
9503.49.0020, HTSUSA. Our decision follows.

FACTS:

The samples are pillow-like articles designed and shaped to resemble
various animals and creatures. An enclosure lists the Pillow Buddies®
styles as a gray rabbit, elephant, cat, pig, both green and purple
dinosaurs, lion, panda, raccoon, reindeer, snowman, whale, tiger, dog,
cow, dalmation, jack-o-lantern, Christmas bear, grey and pink rabbits,
baby lamb, fish, penguin, flipper, and hatching chicky. A number of
samples were submitted. In literature submitted the reindeer, Christmas
bear, jack-o-lantern, and hatching chicky are also described as Holiday
Buddies®. Each Pillow Buddies® differs depending on the animal or
creature that it represents. However all possess the following
characteristics and features, as appropriate: The outer surfaces are
composed of 100% polyester fleece or a blend of polyester, acrylic,
cotton, and/or nylon. The fabric is stuffed with 100% polyester
fiberfill or a similar type of soft filling material giving the articles
a soft, resilient feel. They generally measure approximately 27 inches
long (excluding tails) by 16 inches at their widest point. They are an
average of 5 inches thick. The construction of these articles include
stuffed heads with eyes, noses, snouts and ears, some of which are
three-dimensional, although most are just overlaid material in
contrasting colors; a stuffed, fairly block-shaped torso onto which
appendages, e.g., heads, tails, scales are attached; flat and plain
undersides; and arm, leg, and paw appendages which are stuffed but are
configured in such a way as to form, with the torso, a rectangle shaped
article. These features make the Pillow Buddies® eminently suitable for
use in a stretched out and prone position on its stomach and impractical
for use in any other position.

ISSUE:

Whether the proper classification of Pillow Buddies® is in heading 6307,
HTSUS, as other made up textile articles, in heading 9503, HTSUS, as
stuffed or other toys, or in heading 9404, HTSUS, as other pillows?

LAW AND ANALYSIS:

Classification under the 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 (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 GRI\'s.

The protestant contends that these Pillow Buddies® should be classified
in subheading 9503.41.0010, HTSUSA, which provides for stuffed toys
representing animals or non-human creatures, or in the alternative in
subheading 9503.49.0020, HTSUSA, as other (than stuffed) toys
representing animals or non-human creatures.

The competing provisions for the Pillow Buddies® are heading 6307,
HTSUS, other made up textile articles, heading 9503, HTSUS, stuffed or
other toys, and heading 9404, HTSUS, other pillows.

Heading 9404, HTSUS, provides for articles of bedding and similar
furnishings (for example, mattresses, quilts, eiderdowns, cushions,
pouffes and pillows) fitted with springs or stuffed.

A pillow is defined by [Webster\'s Third New International Dictionary,
Unabridged]{.underline} (1986) as \"1 a : something used to support the
head of a person resting or sleeping; esp : a sack or bag made typically
of cloth and filled with a soft or resilient material (as feathers,
down, hair, sponge rubber) : CUSHION.\"

In defining cushions and pillows. [The Random House Dictionary of the
English Language, the Unabridged Edition]{.underline} (1983) states at
p. 357, \"CUSHION, PILLOW, BOLSTER agree in being cases filled with a
material more or less resilient, intended to be used as supports for the
body or parts of it. A CUSHION is a soft pad used to sit, lie, or kneel
on, or to lean against: a number of cushions on a sofa; cushions on pews
in a church. A PILLOW is a bag or case filled with feathers, down, or
other soft material, usually to support the head: to sleep with a pillow
under one\'s head.\"

It is the opinion of this office that so long as pillow-like articles
such as Pillow Buddies® are sufficient in size and stuffing to be
capable of providing support, classification in heading 9404, HTSUS, is
not excluded.

The size, shape, and textures of the Pillow Buddies® provide a clear
invitation for children to relax, snuggle, and sprawl upon their
favorite animal or creature. Their attraction and function is similar to
the merchandise of

HQ 957560, which referred to pillow-like articles designed and shaped to
resemble the heads of cartoon characters and which possessed some toy
features. This seems to be similar to the use of cushions as defined
above. In our opinion, cuddly novelty or specialty pillows in the shapes
of different figures or objects much like the examples noted in HQ
957617, are principally marketed and used as such. Note the catalog page
supplied by the importer describes the merchandise as "pillows (they're
actually pillows, not pillowcases)". The hangtags on the articles
describe them as "A soft, cuddly pillow for kids. Great for a room
decoration, lounging around the house, or as a travel companion." The
reverse side of the hangtags describe the Pillow Buddies® as a "cuddly
soft kid's pillow".

The Pillow Buddies® are described within the provisions of heading 9404,
HTSUS. We must now consider whether the Pillow Buddies® are also
described within the provisions of heading 9503, HTSUS, as claimed by
the importer.

Chapter 95, HTSUSA, covers toys of all kinds, whether designed for the
amusement of children or adults. Although the term "toy" is not
specifically defined in the tariff, the ENs to Chapter 95, HTS, indicate
that this chapter covers toys of all kinds whether designed for the
amusement of children or adults. Customs has classified in subheadings
9503.41 through 9503.49, HTSUS, the provisions for toys representing
animals or non-human creatures, those toy animals or creatures which are
full or reasonably full-figured depictions of the animals or creatures
which they seek to represent, which are fully configured in the sense
that they are an articulation of the character in three dimensions, i.e.
a

representation in a sculptured form. See HQ 951533, HQ 957560, and

HQ 957617.

In the case of [Louis Marx & Co., Inc. v. United States]{.underline}, 66
Cust. Ct. 139, C. D. 4183 (1971), the court stated that \" \`figures of
animate objects\' must be read to mean forms or representations of
humans or animals.\" While C. D. 4183 concerned item 737.30, Tariff
Schedules of the United States (TSUS), this tariff provision corresponds
to subheading 9503.41.0010, HTSUSA. In HRL 079594, we stated that
Customs position has been that the phrase \"figures of animate objects\"
refers to a clearly defined configuration of an animate object in a
three-dimensional form. It is, therefore, clear that there is both
judicial and administrative support for the idea that the provisions for
toys representing animals and non-human creatures require that a toy
figure must be a full or reasonably full-figured depiction of the
animal/creature it seeks to represent and that figure must be a soft,
sculptured edition or an articulation in three dimensions of the head,
torso, and appendages of the character being portrayed.

The Pillow Buddies® basically, although not completely, meet this
criterion. In most cases the construction of these figures includes
stuffed heads with eyes, noses, snouts and ears consisting of overlaid
material in contrasting colors rather than articulated features; a
stuffed, fairly block-shaped torso onto which appendages, heads, tails,
scales are attached; flat and plain undersides; and arm, leg, and paw
appendages which are stuffed but are configured in such a way as to
form, with the torso, a basically rectangular article. The Pillow
Buddies® are generally designed and constructed to lie in a flat
position, as would any pillow-like object. The shape of the articles
enable them to be used as floor or bed pillows while watching TV,
reading, relaxing, or napping. Because of this design, the anatomy of
the articles is not completely and fully delineated into sculpted fully
three-dimensional anatomical definition of the animals or creatures they
seek to portray.

In addition, in order for Pillow Buddies® to be classified as toys they
must be principally designed for amusement. It is our view that the
shapes, colors, and designs of the Pillow Buddies® are designed to
amuse. We note however, that their large size makes them difficult for a
small child (the ultimate consumer) to manipulate and detracts somewhat
from their play value, although not their amusement value as evidenced
by the reactions of the children we observed with the samples submitted.
To the children these were objects of much amusement. It therefore
appears that the imported articles may have a dual purpose, for use as a
pillow-like object, and as a toy. Customs Headquarters Ruling Letter
(HRL) 951309, dated April 26, 1993, concerned M & M novelty figures
designed as lids for closure of containers filled with candy. In that
case we noted that the merchandise had the appearance and play value of
any toy, that it could be used for amusement without being used as a
closure or stopper, that the primary value of the item is its play
value, and that the utilitarian aspect of the merchandise is

temporary and incidental to the amusement factor. We concluded that the
articles were classified as toys. (See also HQ 958785).

Upon a review of the commercial samples submitted, and observation of
how these articles were actually used by the ultimate consumers
(children), the Customs Service is now of the opinion, that the primary
use of the Pillow Buddies® is in its amusement value and not in its use
as a pillow-like object. Its cartoon-like amusing appearance, and soft,
manipulative polyester fleece skin make it suitable as an object of
amusement or plaything. It appears to be principally used as a toy and
its use for any other purpose would be secondary.

We note that in the Stipulated Judgement on Agreed Statement of Facts in
[Play by Play Toys and Novelties, Inc. v. United States]{.underline},
CIT case no. 96-02-00430, pillow-like articles similar to Pillow
Buddies® but designed and shaped to resemble only the heads of cartoon
characters were classified as pillows, cushions and similar furnishings
under heading 9404.90, HTSUS. Furthermore, in the cases cited by
protestant, specifically HQ 951533, dated June 17, 1992, regarding a
\"Beast\" pillow and HQ 951737, dated June 8, 1992, regarding a
\"Belle\" pillow, it was determined that the pillows did not qualify for
classification in heading 9404, HTSUSA, because they were not designed
to afford support; the filling in those pillows merely provided shape to
the pillows. In contrast the Pillow Buddies® are reasonably full-figured
depictions of the animal/creature they represent. In addition, the
Pillow Buddies® could be used for support, as for example, if placed
along the spine of a chair to provide support to the lower back. The
filling as such, does not merely provide shape to the pillow, but also
offers support.

For these reasons it is our opinion that the Pillow Buddies®, including
the Holiday Buddies®, meet the requirement of a toy animal or creature
and are classified in heading 9503, HTSUS.

The subheadings at issue essentially differentiate between toy animals
that are stuffed and those that are not stuffed.

In determining whether an article classifiable within heading 9503 is
stuffed for tariff purposes, it is Customs position that the stuffing
materials must impart the shape and form of the torso of the animal or
creature. Customs has also held that the \"feel\" of an article may be
relevant to the determination as stuffed or non-stuffed. This
long-standing position is based, 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,
in part, 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...

...

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...

In HRL 089334, issued August 26, 1991, Customs, after citing this
definition, 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 this case, the stuffing materials do impart the shape and form of the
Pillow Buddies®, although the torso area of the figures feel somewhat
less than fully packed, the torso does return to its original form after
being compressed. It is our view that taken as a whole the articles
adequately portray animal likeness and that the stuffed toy animals
provide the essential character of the Pillow Buddies®. They are
therefore classified as stuffed toys.

Heading 6307, HTSUS, provides for other made up articles of textiles. It
is a basket provision wherein a variety of merchandise is classified
when no other heading more specifically provides for given merchandise.
This is not the situation in this case.

HOLDING:

The Pillow Buddies®, including those described as Holiday Buddies® are
classifiable in subheading 9503.41.0010, HTSUSA, which provides for
"Toys representing animals or non-human creatures...: Stuffed toys...:
Stuffed toys."

Therefore, based on the foregoing discussion, you are instructed to DENY
the protest except to the extent that classification as provided herein
results in a full or partial refund, as appropriate.

In accordance with Section 3A (11)(b) of Customs Directive 0993550-065,
dated August 4, 1993, Subject: Revised Protest Directive, you are to
mail this decision, together with the Customs Form 19, 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 make the decision available to Customs personnel, and to
the public on the Customs Home Page on the World Wide Web at
www.customs.treas.gov., by means of the Freedom of Information Act and
other methods of public distribution.

Sincerely,

John A. Durant, Director

Commercial Rulings Division