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NY 806703

February 10, 1995

CLA-2-95:S:N:N8:224 806703


TARIFF NO.: 9503.49.0020

David A. Eisen
Siegel, Mandell & Davidson, P.C.
One Astor Plaza
1515 Broadway
New York, NY 10036-8901

RE: The tariff classification of "Animal Bath Puppets" from China and/or Taiwan.

Dear Mr. Eisen:

In your letter dated February 6, 1995, you requested a tariff classification ruling on behalf of Avon Products, Inc.

The merchandise is described as textile bath puppets which depict either a frog or a fish (pp 128473/128476). The frog bath puppet measures approximately nine inches in length, is constructed of knit polyester fabric and stuffing, and features sewn-on eyes and a "protruding" textile tongue. The fish bath puppet is approximately nine inches in length, is constructed of knit polyester fabric and stuffing, and features sewn-on eyes, extended textile gills, raised textile fin, gaping mouth and protruding textile tongue. Both items incorporate an opening enabling a child to insert its hand to manipulate and play with the puppet while in the bath or shower. The samples are being returned at your request.

Heading 9503, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), is the provision for other toys. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, although not legally binding, are the official interpretation of the nomenclature. The EN to Chapter 95, HTSUSA, state that this Chapter covers toys of all kinds whether designed for the amusement of children or adults. In Headquarters Ruling Letter 088983, dated August 12, 1991, Customs interpreted the phrase "designed for the amusement of" to mean that the use of the article is a factor when classification under Heading 9503, HTSUSA, as a toy, is a possibility.

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

A tariff classification controlled by use (other than actual use) is considered 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.

When applying the aforementioned chapter note to the subject merchandise, it appears that for the items to be properly classified as a toy under Heading 9503, HTSUSA, the items' principal use must be for amusement. In Ideal Corp. v. United States, 78 Cust. Ct. 28, C.D. 4688 (1977), the court explained that "when 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." Although Ideal Corp. was decided under the Tariff Schedules of the United States (TSUS), which was replaced by the HTSUSA, the rationale is applicable to this case and will be used as guidance.

These "bath puppets", with their full-figured, comical depiction of animals, bright colors, and soft, manipulative character, all of which are common characteristics of a stuffed toy animal used for child's play, have the general appearance and play value of a stimulating toy for young children. They serve as a source of amusement while bathing without being used as a wash mitt. Even when the articles are used as wash mitts, they will continue to provide play, amusement and entertainment for the child user. Thus, use as amusement for a child seems to be the principal use for these articles, while the utilitarian feature as bath mitts seems to be ancillary. Their primary commercial value seems to be their play value. Consequently, the merchandise is classifiable as toys in Heading 9503, HTSUSA.

The applicable subheading for the "Animal Bath Puppets" will be 9503.49.0020, HTSUSA, which provides for "Toys representing animals or non-human creatures...: Other, other toys not having a spring mechanism." The rate of duty will be free.

This ruling is being issued under the provisions of Section 177 of the Customs Regulations (19 C.F.R. 177).

A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is imported. If the documents have been filed without a copy, this ruling should be brought to the attention of the Customs officer handling the transaction.


Jean F. Maguire
Area Director

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