H325768

 HQ H325768 December 22, 2023 OT:RR:CTF:CPMMA H325768 KSG CATEGORY: Classification TARIFF NO.: 9503.00.00 Ms. Amanda Levitt, Esquire Mr. Lenny P. Feldman, Esquire Sandler, Travis & Rosenberg, P.A. 675 Third Avenue Suite 1805 - 06 New York, NY 10017 alevitt@strtrade.com RE: Tariff classification of six 12-inch plush articles described as a “Squishmallows®” “Squad” Dear Ms. Levitt and Mr. Feldman: This letter is in response to your request for a binding ruling on behalf of Kelly Toys Holding, LLC, regarding the tariff classification of a grouping of six different 12-inch plush articles called “Squishmallows®” under the Harmonized Tariff Schedule of the United States (HTSUS). We regret the delay in responding to your request. FACTS: The items at issue, Item No. SQ20-12ASR-B ( “Squishmallows® Assortment B”), is a “squad” of six plush, whimsical, stuffed articles that are imported together but sold individually at retail with a suggested retail price of $14.99-$19.99. They are marketed as a collectible assortment, as shown on their hangtags. Each individual “Squishmallows®” plush animal and creature in this squad is approximately 12” in height. Each individual plush animal is made of polyester felt on its body and is filled with polyester fibers. Each has a comically large body and face combined and resembles the animal or creature that it represents (e.g., octopus, mouse, dragon) with facial features, markings, and notable extremities (e.g., horns, ears, wings). The hangtags create names and personalities for the figures. Each individual plush animal or creature is given a proper name and character description that explains its personality, aspirations , hobbies, and the like, on each individual’s hangtag. The articles are extremely soft and smooth to the touch, and extremely squishy, to entice hugs and cuddling. The panda unicorn figure is black and white with large black rings around its eyes. It has the following appendages with three-dimensional design: two ears, a tail, a unicorn horn, and silver wings. The dragon figure is green and has the following appendages: two ears, wings, scales going down its back and a tail. The mouse figure is grey and has the following appendages: two ears, and a tail. The octopus figure is purple and has eight tentacles. The parrot figure is red and has a tuft of white hair on the top of the figure and two wings. The unicorn has the following appendages: two ears, a tail, and a gold horn. The figures are collectibles and are distinctive for being soft and squishy. The figures have won toy awards such as “TOY OF THE YEAR”, “People’s Choice Award” and “Plush Toy of the Year” for 2022 by The Toy Association, Inc. and are marketed and sold as toys in the toy aisles of major retailers and online. ISSUE: Whether the six plush articles in the grouping are classified in heading 9404 as pillows or in heading 9503 as toys. LAW AND ANALYSIS: 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 GRIs 2 through 6 may then be applied in order. The 2023 HTSUS headings under consideration are the following: 9404 Mattress supports; articles of bedding and similar furnishing (for example, mattresses, quilts, eiderdowns, cushions, pouffes and pillows) fitted with springs or stuffed or internally fitted with any material or of cellular rubber or plastics, whether or not covered: 9503 Tricycles, scooters, pedal cars and similar wheeled toys; dolls? carriages; dolls, other toys; reduced-scale (“scale?) models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System, which constitute the official interpretation of the HTSUS at the international level, may be utilized. The ENs, while neither dispositive nor 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. 89-80, 54 Fed. Reg. 35127 (August 23, 1989). Chapter Note 1(x), Chapter 95, HTSUS, excludes tableware, kitchenware, toilet articles, carpets and other textile floor coverings, apparel, bed linen, table linen, toilet linen, kitchen linen and similar articles having a utilitarian function (classified according to their constituent material). The EN to heading 9404, HTSUS, states, in pertinent part, the following: This heading covers: … (B) Articles of bedding and similar furnishing which are sprung or stuffed or internally fitted with any material (cotton, wool, horsehair, down, synthetic fibres, etc.), or are of cellular rubber or plastics (whether or not covered with woven fabric, plastics, etc.). The EN to heading 9503, HTSUS, states, in pertinent part, the following: This heading covers: (D) Other toys. This group covers toys intended essentially for the amusement of persons (children or adults). However, toys which, on account of their design, shape or constituent material, are identifiable as intended exclusively for animals, e.g., pets, do not fall in this heading, but are classified in their own appropriate heading. This group includes: … (i) Toys representing animals or non-human creatures even if possessing predominantly human physical characteristics (e.g., angels, robots, devils, monsters), including those for use in marionette shows. Although the term “toy” is not defined in the HTSUS, the General Explanatory Notes to Chapter 95, HTSUS, state that the “Chapter covers toys of all kinds whether designed for the amusement of children or adults.” Insofar as it pertains to toys, the Court of International Trade construes heading 9503, HTSUS, to be a “principal use” provision. See Minnetonka Brands v. United States, 110 F. Supp. 2d 1020, 1026 (Ct. Int’l Trade 2000). Thus, to be a toy, the “character of amusement involved [is] that derived from an item which is essentially a plaything.” Wilson’s Customs Clearance, Inc. v. United States, 59 Cust. Ct. 36, C.D. 3061 (1967). In Processed Plastic Co. v. United States, 473 F.3d 1164 (Fed. Cir. 2006), the court held that “the principal use of a “toy” is amusement, diversion, or play … rather than practicality.” To assist in the determination of whether an article should be classified as a toy or not, the court in Ideal Toy Corp. v. United States 78 Cust. Ct. 28, 33, Cust. Dec. 4688 (1977) stated that “[w]hen amusement and utility become locked in controversy, the question becomes one of determining whether the amusement is incidental to the utilitarian purpose, or the utility purpose incidental to the amusement.” Thus, to be classified as a toy in heading 9503, HTSUS, an article must belong to the same class or kind of goods which have the same principal use as toys. In Headquarters Ruling Letter (HQ) H275175, dated September 5, 2017, CBP recounted the legal history of classification of toys under heading 9503. The tariff term “toy” is not statutorily defined. The courts and CBP construe statutorily undefined terms in accordance with their common and commercial meaning, which is presumed to be the same. See E.M. Chems. v. United States, 920 F.3d 910, 913 (Fed. Cir. 1990). However, the courts, through a series of decisions, have crafted a framework for “toys” of heading 9503, HTSUS, which guides CBP in the instant case. In Springs Creative Products Group v. United States, 35 I.T.R.D. (BNA) 1955, Slip Op. 13-107 (Ct. Int’l Trade Aug. 16, 2013), the Court opined on the tariff classification of a child’s craft kit for making a fleece blanket. In its analysis, the Court consulted dictionaries, and other reliab

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 GRIs 2 through 6 may then be applied in order. The 2023 HTSUS headings under consideration are the following:9404 Mattress supports; articles of bedding and similar furnishing (for example, mattresses, quilts, eiderdowns, cushions, pouffes and pillows) fitted with springs or stuffed or internally fitted with any material or of cellular rubber or plastics, whether or not covered:9503 Tricycles, scooters, pedal cars and similar wheeled toys; dolls? carriages; dolls, other toys; reduced-scale (“scale?) models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereofIn understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System, which constitute the official interpretation of the HTSUS at the international level, may be utilized. The ENs, while neither dispositive nor 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. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).Chapter Note 1(x), Chapter 95, HTSUS, excludes tableware, kitchenware, toilet articles, carpets and other textile floor coverings, apparel, bed linen, table linen, toilet linen, kitchen linen and similar articles having a utilitarian function (classified according to their constituent material).The EN to heading 9404, HTSUS, states, in pertinent part, the following:This heading covers:…(B)  Articles of bedding and similar furnishing which are sprung or stuffed or internally fitted with a