HQ 959749

October 23, 1997

CLA-2 RR:CR:GC 959749 MMC

CATEGORY: Classification

TARIFF NO.: 4420.10.00; 6810.99.00

Port Director of Customs

555 Battery Street

San Francisco, CA 94111

RE: Protest 2809-96-100702; \"Barnyard Bunch Crow\" and

\"Sculptstone Bear\"; HRL 088146; EN 44.20, 95.03; Note 1(p) to

Chapter 44; 19 CFR §174.14(a); United States v. Topps Chewing Gum

Inc, Anhydrides & Chemicals, Inc. v. U.S., ITT Corp. v. United

States; 19 CFR 174.28

Dear Port Director:

The following is our response to protest 2809-96-100702

concerning your classification decision regarding articles

identified as \"Barnyard Bunch Crow (item \# 2755)\" and

\"Sculptstone Bear\" under the Harmonized Tariff Schedule of the

United States (HTSUS). Descriptive literature as well as a

sample of the \"Barnyard Bunch Crow\" were submitted for our

review. A meeting was held on March 12, 1997, to further

discuss the \"Barnyard Bunch Crow\" classification. No sample,

description or discussion concerning the \"Sculptstone Bear\" was

provided.

FACTS:

The articles are described as a \"Barnyard Bunch Crow\" and a

\"Sculptstone Bear.\" The \"Barnyard Bunch Crow \" is a 7 « inch

two dimensional carved wooden figurine with a head, arms and

legs. The figurine has been painted black. The face has two

white painted eyes and an orange beak. The body and head of the

figurine are clothed in \"country style\" overalls, dresses and

hats made of various textile fabrics. A tag attached to the

sample is marked \"Whittled Whimseys \" and states the following:

Traditions are the heart and soul of a family, providing a

bridge of memories that spans many generations. From the

early settlers, who brought European arts and crafts to

America, we inherited a rich cultural tradition. Inspired

by the traditions of early American life, of days when

neighbors gathered for quilting bees and barn rasings, when

communities and families depended upon one another for

livelihood and leisure-we have created \"Whittled Whimseys .\"

A tribute to the plain folks, whose vision and handiwork

have become a part of the American legacy, this collection

seeks to inspire families to continue to create traditions,

stories and memories for our children.\[emphasis added\]

The back of the tag states, in pertinent part, \"\...CAUTION: FOR

DECORATIVE PURPOSES ONLY NOT SUITABLE FOR CHILDREN.\"

In a meeting held on March 12, 1997, protestant indicated

both of these figurines are sold in card and gift shops. The

catalog indicates that:

the \"Barnyard Bunch Crow\" is of the whittled friends

collection of country folk art designs and is inspired by

the traditions of the past. (Not gift boxed, except as

noted)

Furthermore, protestant indicated that the catalog is given to

card and gift shop retailers. Finally, we note that the Protest

and Summons Information Report dated May 24, 1996, indicates that

the subject articles are manufactured by a company known as \"Top

Green Gifts.\"

Protestant was directed to enter the \"Barnyard Bunch Crow\"

under subheading 4420.10.0000, HTSUS, as \"Wood marquetry and

inlaid wood; caskets and cases for jewelry or cutlery and similar

articles, of wood; statuettes and other ornaments, of wood;

wooden articles of furniture not falling within chapter 94:

Statuettes and other ornaments, of wood.\" The \"Sculptstone

Bear\" was entered under subheading 6810.99.00, HTSUS, which

provides for \"Articles of cement, of concrete or of artificial

stone, whether or not reinforced: Other article: Other.\"

Protestant asserts that both the \"Barnyard Bunch Crow\" and

the \"Sculptstone Bear\" are classifiable under subheading

9503.49.0020, HTSUS, which provides for \"Other toys; reduced-size

(\"scale\") models and similar recreational models, working or not;

puzzles of all kinds; parts and accessories thereof: Toys

representing animals or non-human creatures (for example, robots

and monsters) and parts and accessories thereof: Other, Toys not

having a spring mechanism: Other.\" The entry, made on January

2, 1996, was liquidated on May 3, 1996, and a protest was timely

filed on May 24, 1996. The headings under consideration are:

4420 Wood marquetry and inlaid wood; caskets and cases for

jewelry or cutlery and similar articles, of wood;

statuettes and other ornaments, of wood; wooden

articles of furniture not falling within chapter 94

6810 Articles of cement, of concrete or of artificial

stone, whether or not reinforced

9503 Other toys; reduced-size (\"scale\") models and

similar recreational models, working or not;

puzzles of all kinds; parts and accessories

thereof

ISSUE:

Whether the \"Barnyard Bunch Crow\" and \"Sculptstone Bear\" are

classifiable as statuettes based on their constituent material or

as other toys.

LAW AND ANALYSIS:

\"Sculptstone Bear\"

The protest contains no specific description of the

\"Sculptstone Bear\" or any distinct and specific explanation of

the justification for the objection to Customs classification

other than to propose an alternate classification. \"Customs\'

tariff classification decisions are presumed to be correct \[and\]

the importer bears the burden of proving otherwise\" (28

U.S.C.2639(a)(1), e.g., Anhydrides & Chemicals, Inc. v. U.S., CIT

Slip Op. 96-49, dated March 7, 1996. See also, ITT Corp. v.

United States, 24 F. 3d 1384, 1387 (Fed. Cir. 1994), a case

concerning request for reliquidation of an entry to correct a

clerical error, mistake of fact, or other inadvertence under 19

U.S.C. 1520 (c)(1), in which the Court stated:

\...\[A\] prudent importer would submit all its supporting

documentary evidence along with its timely notice alleging a

mistake of fact before Customs\' consideration in order to

facilitate a prompt and favorable decision \[and as\] \[t\]he

\]\[CIT\] correctly notes\... \" a party who waits past the time

of filing its\....\[section\] 1520(c)(1) request to file

supporting documentation risks an adverse decision by

Customs in the interim\" \[24 F.3d 1388\].

Similarly, an imprudent importer who fails to provide necessary

evidence ( such as a specific description of the imported

merchandise) and who fails to distinctly and specifically set

forth the nature of and justification of its objection within the

statutory and regulatory time limit, risks an adverse decision by

Customs on its protest (see 19 CFR 174.28). In the absence of

any such evidence, and in view of the presumption that Customs

tariff classification is correct, the protest is denied in regard

to the \"Sculptstone Bear\".

\"Barnyard Bunch Crow\"

Classification under the HTSUS is made in accordance with

the General Rules of Interpretation (GRIs). GRI 1 provides that

the classification of goods shall be determined 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 may then

be applied.

In understanding the language of the HTSUS, the Explanatory

Notes (ENs) of the Harmonized Commodity Description and Coding

System may be utilized. The ENs, although not dispositive, or

legally binding, provide a commentary on the scope of each

heading, and are generally indicative of the proper

interpretation of the HTSUS. See, T.D. 89-90, 54 Fed. Reg.

35127, 35128 (August 23, 1989). EN 44.20, states in pertinent

part, that:

This heading covers panels of wood marquetry and inlaid

wood, including those partly of material other than wood.

It also covers a wide variety of articles of wood (including

those of wood marquetry or inlaid wood), generally of

careful manufacture and good finish, such as: small articles

of cabinetwork (for example, caskets and jewel cases); small

furnishing goods; decorative articles\....

\....The heading includes:

\* \* \* \*

\...(3) Statuettes, animals, figures and other ornaments

As the tag, catalogs and physical appearance of the article all

indicate, the \"Barnyard Bunch Crow\" is a wooden ornamental figure

described by heading 4420, HTSUS, specifically, subheading

4420.10.000, HTSUS.

Protestant argues that while the subject \"Barnyard Bunch

Crow\" meets the description of heading 4420, HTSUS, it is

nonetheless excluded from classification in heading 4420, HTSUS,

by application of Note 1(p) to Chapter 44. Note 1(p) states, in

pertinent part, that: \"This chapter does not cover:\... Articles

of chapter 95 (for example toys, games, sports equipment);\...\"

Heading 9503, HTSUS, applies to \"other toys,\" i.e., all toys

not specifically provided for in the other headings of chapter

95\. Although the term \"toy\" is not defined in the tariff, the EN

to Chapter 95 indicates that a toy is an article designed

principally for the amusement of children or adults.

In Headquarters Ruling Letter 088146 dated February 23,

1991, Customs classified stuffed Santa Claus and Christmas Bear

tissue box covers. Customs indicated that the HTSUS headings

which classify toys provide for a class of merchandise whose

principal use is that of amusement, for either children or

adults. Counsel stated that \"The stuffed Santa/Bears only have

one purpose, that of providing entertainment or amusement value

to children. \* \* \* Children will derive significant play

value from either article.\" We disagreed and held that the

tissue box covers neither imparted a significant play value to

children or adults, nor were they designed or principally used

for such amusement. Rather, the tissue boxes were simple novelty

items incorporating a seasonal motif and were principally used as

home decorative furnishing articles. Finally, Customs indicated

that there was no requirement that the goods have a utilitarian

function to be excluded from the class \"toys.\"

Like the tissue box covers, the \"Barnyard Bunch Crow\" does

not impart significant play value to children or adults. Their

form and constituent material are not indicative of a toy nor are

they constructed to be a toy imitation of a crow. They are

devoid of any of the primary toy features that appeal to the fun

sense, such as exaggerated or comical facial features, a sound

device, animation, bright colors or adjustable limbs.

The \"Barnyard Bunch Crow\", with its wooden flat

configuration is designed for display as an ornamental decorative

piece. Such design is evidenced by the cautionary language on

the tag, as well as the marketing evidenced by language quoted in

the facts section which appears on the tag and the article\'s

presentation in the catalogs. Furthermore, the manufacturer of

the \"Barnyard Bunch Crow\" specializes in gift items, as evidenced

by the company\'s name. Finally, the \"Barnyard Bunch Crow\" is

sold in card and gift stores, a venue more typical for the sale

of decorative display pieces than for toys.

Protestant claims that the \"Barnyard Bunch Crow\" is a toy

because it provides the same kind of \"frivolous amusement\" that

playthings give. In support of its position, protestant cites

The United States v. Topps Chewing Gum Inc., 58 CCPA 157, C.A.D.

1022 (1971), (hereinafter Topps) which concerned the

classification of various decorative buttons with humorous

quotes. Topps held that if the purpose of an object is to give

the same kind of enjoyment as playthings give, its purpose is

amusement. It is the quality of mind or emotion induced by the

object which is controlling. Therefore, an article classified as

a toy does not have to be a plaything, provided that the quality

of emotion induced by the article takes on the character of

frivolous amusement. We are of the opinion that the reasoning

provided for in Topps is not applicable to the present articles.

In Topps, the court classified articles whose humorous sayings

created evident and inherent amusement. This is not the case

with the \"Barnyard Bunch Crow.\" Nothing about it demonstrates

that it is inherently or evidently amusing.

Protestant argues that the principle expressed in EN 95.02,

that the class \"dolls\" includes dolls intended for decorative

purposes, should apply to \"toys\" as well. We disagree. The

cited EN defines the scope of heading 95.02, only. Other

headings in the tariff specifically provide for decorative

statuettes of various constituent materials. The fact that such

headings have been provided clearly indicates that statuettes of

various constituent materials were not intended to be included

within the scope of heading 9503, HTSUS.

Heading 9503, HTSUS, does not describe the \"Barnyard Bunch

Crow.\" Therefore, the \"Barnyard Bunch Crow\" is classifiable

under heading 4420, HTSUS, specifically, subheading 4420.10.0000,

HTSUS, which provides for \"Wood marquetry and inlaid wood;

caskets and cases for jewelry or cutlery and similar articles, of

wood; statuettes and other ornaments, of wood; wooden articles of

furniture not falling within chapter 94: Statuettes and other

ornaments, of wood.\"

Harbor Maintenance Fees

Protestant alleges that the assessment of harbor maintenance

fees (HMF) under 26 U.S.C. §§ 4461, 4462, is unconstitutional.

However, protestant failed to provide any distinct and specific

explanation of the justification for the objection to the

assessment. In the absence of any distinct and specific

explanation of the justification for the objection to the port\'s

assessment the protest is denied in regard to the HMF claim.

HOLDING:

The protest should be DENIED IN FULL.

The \"Barnyard Bunch Crow\" is classifiable under subheading

4420.10.0000, HTSUS as \"Wood marquetry and inlaid wood; caskets

and cases for jewelry or cutlery and similar articles, of wood;

statuettes and other ornaments, of wood; wooden articles of

furniture not falling within chapter 94: Statuettes and other

ornaments, of wood,\" with a 1996 general column one duty rate of

4.3 percent ad valorem.

The \"Sculptstone Bear\" is classifiable under subheading

6810.99.00, HTSUS, as \"Articles of cement, of concrete or of

artificial stone, whether or not reinforced: Other article:

Other,\" with a general column one duty rate of 2.9 percent ad

valorem.

Concerning harbor maintenance fees, due to absence of any

distinct and specific explanation of the justification for the

objection to the assessment the HMF claim is denied.

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 this decision

must be accomplished prior to the mailing of the decision. Sixty

days from the date of this 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, Freedom of

Information Act and other public access channels. A copy of this

decision should be attached to the Customs Form 19, Notice of

Action on the protest, to be returned to the protestant.

Sincerely,

John Durant, Director

Commercial Rulings Division