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HQ 087133

October 18, 1990

CLA-2 CO:R:C:G 087133 SLR


TARIFF NO.: 6307.90.9590

District Director of U.S. Customs
300 South Ferry Street
Terminal Island, CA 90731

RE: Protest No. 2704-89-002117;
Bear Bank

Dear Sir:

This correspondence constitutes our decision regarding Application for Further Review of Protest No. 2704-89-002117, filed by Gootnick Enterprises on June 2, 1989.


The submitted sample, item #0225, is a partially stuffed bear figure measuring approximately 8-1/2 inches in height and 7 inches in width. The head and appendages of the bear are stuffed, while the torso incorporates a hollow plastic container for the holding of coins. The sample contains a coin slot and bottom plug for the removal of coins. Its exterior is made of soft plush pile fabric.

A shipment of the subject merchandise was liquidated in subheading 6307.90.9030, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for other made up articles of textile materials, dutiable at 7 percent ad valorem. This provision is now subheading 6307.90.9590.

The importer requests classification in subheading 9503.49.0020, HTSUSA, which provides for toys representing animals or non-human creatures, dutiable at 6.8 percent ad valorem. It is claimed that the subject item enjoys duty free status by virtue of subheading 9902.95.02, HTSUSA. Accordingly, the protestant requests that the entry in question be re-liquidated under subheadings 9503.49.0020 and 9902.95.02, resulting in a refund of duties.


Whether the subject article is classifiable in subheading 9503.49.0020, HTSUSA, and, if not, what classification is appropriate.


Classification of merchandise under the HTSUSA is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification is determined according to the terms of the headings and any relative section or chapter notes.

Heading 9503, HTSUSA, provides, in pertinent part, for "[o]ther toys." The Explanatory Notes to Chapter 95 indicate that: "This Chapter covers toys of all kinds whether designed for the amusement of children or adults." The phrase "designed for the amusement of" is generally understood to indicate that the use of an article will be a factor when classification as a toy is being considered.

Additional U.S. Rule of Interpretation 1(a), HTSUSA, provides that absent language to the contrary:

[A] tariff classification controlled by use (other than actual use) is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use.

Therefore, in order to be classified as a toy, the bear bank would need to be principally used for amusement. We do not believe this to be the case.

Here, the subject bear bank serves primarily as a receptacle or storage space for coins. The commercial viability depends primarily on the item functioning as a bank, not as a toy plaything. While Explanatory Note (a)(21) to heading 9503 indicates that toy money banks are included within the heading, we do not interpret this provision as encompassing static, passive child or adult novelty banks. In light of this reasoning, the bear bank does not qualify as a toy within the purview of Chapter 95, HTSUSA; and, correspondingly, it is not classifiable in any of the headings which accompany that chapter.

Since proper classification cannot be determined by applying GRI 1, reference to the subsequent GRI's is necessary. GRI 2 contains two clauses, the second of which pertains to mixtures or combinations of a material or substance, and goods consisting of two or materials or substances. GRI 2(b) further provides: "The classification of goods consisting of more than one material or substance shall be according to the principles of Rule 3." As the instant bear bank is made up of two different
materials (and, thus, classifiable in two separate headings: heading 3926, for other articles of plastic; and heading 6307, for other made up articles of textile materials), GRI 3 must be consulted.

Here, the two headings at issue refer to part only of the subject bear bank, and according to GRI 3(a) are to be regarded as equally specific, thereby making resort to GRI 3(b) necessary. According to GRI 3(b), mixtures and composite goods consisting of different materials, or made up of different components, shall be classified as if they consisted of the component or material which gives them their essential character. The Explanatory Notes to GRI 3(b) indicate that essential character may be determined by considering "the nature of the material or component, its bulk, quantity, weight or value, or by the role of the constituent material in relation to the use of the good."

While the plastic container allows for the holding of coins, the bank's textile covering comprises the bulk of the article and provides for the product's visual appeal. Consequently, the textile covering represents the essential character of the subject bear bank.


Item #0225 is classifiable in subheading 6307.90.9590, HTSUSA, which provides for other made up articles, including dress patterns, other, other, other, other. The applicable rate of duty is 7 percent ad valorem. The bear bank was correctly classified as liquidated.

You should deny the protest in full. A copy of this decision should be sent to the protestant along with the Form 19 Notice of Action.


John Durant, Director
Commercial Rulings Division

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