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HQ 956309

August 19, 1994

CLA-2 CO:R:C:T 956309 CAB

CATEGORY: CLASSIFICATION

TARIFF NO.: 9503.41.1000; 9503.49.0020

Arlen T. Epstein, Esq.
Serko & Simon
One World Trade Center
Suite 3371
New York, NY 10048

RE: Classification of babies' bottle covers; Heading 9503; toys; GRI 3

Dear Mr. Epstein:

This is in response to your inquiry of April 21, 1994, on behalf of your client, Russ Berrie and Company, Inc of Oakland, New Jersey, and its wholly owned subsidiary, Papel/Freelance, Inc., of Cranbury, New Jersey, requesting a ruling under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). This request concerns baby bottle covers described as "Bottle Pals." Samples were submitted for examination.

FACTS:

The merchandise at issue are two soft covers for a baby's bottle. One bottle cover referred to as Style number KXD-310 is tubular in shape, made of cotton shell fabric and a polyester filling, and has a full figured plush stuffed animal sewn to the exterior of the cover. The other bottle cover referred to as Style number L88767 is tubular in shape and represents a bunny rabbit. It is constructed of cotton shell fabric and polyester filling.

ISSUE:

Whether the articles are classifiable as toys under Heading 9503, HTSUSA?

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI's taken in order.

Heading 9503, HTSUSA, is the provision for other toys. The Explanatory Notes 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 utilized as guidance in classifying the instant articles.

Both bottle covers have the general appearance of a stimulating toy for an infant. They are constructed in bright colors and have a soft texture, both of which are common characteristics of a stuffed animal used for child's play. Even when the bottle covers are used to hold a bottle, they still provide entertainment for a baby. Thus, use as amusement for an infant seems to be the principal use for the bottle covers, while the utilitarian feature seems to be incidental. Consequently, the subject bottle covers are both classifiable as other toys under Heading 9503, HTSUSA.

Style no. KXD-310 is considered a composite good as it is comprised of a full-figured stuffed animal character sewn to a hollow bottle sleeve, therefore, its classification cannot be solely based on GRI 1. GRI 3(b) states that composite goods must be classified according to the component which imparts the essential character of the entire article. In this instance, there are two distinct headings that each refer to a part of Style no. KXD-310. The bottle cover is provided for under Heading 6307, HTSUSA, which is the provision for other made up articles. The stuffed animal component is provided for under Heading 9503, HTSUSA, which is the provision for toys. In this case, based on the rationale above, the stuffed animal component imparts the essential character of the entire article.

HOLDING:

Based on the foregoing, Style no. KXD-310 is classified under subheading 9503.41.1000, HTSUSA, which provides for toys representing animals or non-human creatures, stuffed toys and parts and accessories thereof. The applicable rate of duty is 6.8 percent ad valorem. Style no. L88767 is classified under subheading 9503.49.0020, HTSUSA, which provides for toys representing animals or non-human creatures. The applicable rate of duty is 6.8 percent ad valorem.

Sincerely,

John Durant, Director
Commercial Rulings Division

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