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HQ 962226




August 2, 2000

CLA2: RR:CR:TE 962226 SS

CATEGORY: CLASSIFICATION

TARIFF NO.: 6302.93.1000

Frank Prackler
Harold I. Pepper Co., Inc.
181 South Franklin Avenue, Suite 218
Valley Stream, NY 11581

RE: Request for Binding Ruling; “Lion Wash Mitt”; Toilet Linen; Toilet Glove; Subheading 6302.93.1000, HTSUSA; Not Other Toys; Not Subheading 9503.49.0025, HTSUSA

Dear Mr. Prackler:

This is in response to your request on behalf of your client, Harry D. Koenig & Co., Inc., dated August 18, 1998, concerning the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of a “Lion Wash Mitt.” A sample of the “Lion Wash Mitt” and the importer’s catalog was provided with the request.

FACTS:

The submitted sample is identified by the importer as a “Lion Wash Mitt.” The mitt is stated to be made from 75 percent polyester and 25 percent cotton knit terry fabric. It is approximately 8 inches in height, 7-1/2 inches in width at the widest point and 1-3/4 inches thick at the thickest point. The mitt has the appearance of a lion with appliqued eyes, nose and paw, embroidered mouth, ruffled mane and two ears. The “Lion Wash Mitt” is mitten shaped. The thumb fits the single paw while the four fingers are placed in the “head “ segment. The terry knit fabric that makes up the majority of the mitt is laminated to a very thin layer of plastic foam and is lined with a knit fabric backing. The stuffed “face” portion does not have the knit lining but is stuffed with a thick layer of polyester filling which is covered by a woven fabric. There is a small fabric loop attached to the bottom of the mitt which allows it to be hung for drying.

ISSUE: Whether the “Lion Wash Mitt” is classifiable as a wash mitt under heading 6302, HTSUSA, or as a toy under subheading 9503, HTSUSA?

LAW AND ANALYSIS:

Classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is made in accordance with the General Rules of Interpretation (GRI). 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. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI.

Heading 6302, HTSUSA, provides for “[b]ed linen, table linen, toilet linen and kitchen linen.” The EN to heading 6302, HTSUSA, states that the heading includes hand or face towels, bath towels, beach towels, face cloths and toilet gloves. Wash or bath mitts have been considered to be toilet gloves as they are all used as a washing aid during a bath or shower, for ease of lathering and scrubbing. See Headquarters Ruling Letter (HQ) 088398, dated March 23, 1991. Most often they are made of terry-type fabric, and have a rectangular construction which is sewn on three sides to form a mitt. See HQ 088398, cited above. Customs has consistently classified the majority of wash mitts made from the stated polyester/cotton terry fabric under subheading 6302.93.1000, HTSUSA, which provides for pile or tufted, man-made fiber toilet linen. See New York Ruling Letter (NY) A84473, dated June 27, 1996 and NY A89366, dated November 14, 1996. Wash mitts resembling animals have been classified under heading 6302, HTSUSA. See HQ 087397, dated August 9, 1990; HQ 088398, cited above; and NY B87672, dated August 7, 1997; and NY E85176, dated August 10, 1999.

Heading 9503, HTSUSA, is the provision for other toys. The EN to heading 9503, HTSUSA, states that the heading covers toys intended essentially for the amusement of children or adults. According to Additional U.S. Rule of Interpretation 1(a), HTSUSA, a tariff classification controlled by use (other than actual use) is determined according to the use of that class or kind of goods in the United States at, or immediately prior to, the date of importation of the goods and the controlling use is the principal use. Thus, in order for an item to be classified as a toy under heading 9503, HTSUSA, the item’s principal use must be for amusement. Articles sometimes identified as “bath puppets,” which are principally used for amusement, have been classified under heading 9503, HTSUSA. See NY 806703, dated February 10, 1995; NY A80714, dated March 22, 1996; NY A82887, dated May 15, 1996; NY B89549, October 7, 1997; NY C80805, dated November 3, 1997; NY C82617,
dated December 15, 1997; NY C89276, dated July 2, 1998; NY D88879, dated March 11, 1999; and NY E85296, dated August 6, 1999.

In HQ 088398, Customs classified a child’s “wash puppet/mitt” fashioned to resemble a baby chick under heading 6302, HTSUSA. The baby chick wash mitt had a protruding orange beak and decorative bow on the head. The “neck” of the animal face was formed by an elastic tightening which functioned to secure the hand in the mitt while washing. The importer stated the article was intended for use as a bath toy during a child’s bath. Customs stated as follows:

Although the present merchandise has several decorative features which have no practical use, the fabric and construction of the goods serve an essentially functional purpose identical to that of a wash mitt. The thick terry pile fabric is spongy and absorbent, and thus well-suited to the washing process; the mitt capability parallels that of toilet gloves and determines its intended use. Moreover, the bow and beak would not obstruct this purpose since the flat side of the mitt (the back of the baby chick head) would be used to hold soap or scrub the child. The animal features simply add an element of play to the bathing process, and movement of the hand within the mitt provides puppet-like animation.

Heading 9502, HTSUSA, which provides for other toys, including toys representing animals, is rejected for purposes of classification since the merchandise at issue has a distinctly functional use contemplated by the provision for toilet linen. Although we note that the child's mitt in this case may in fact be used more as a toy than as a mitt by the child, it is nonetheless designed as a wash mitt and must be thus classified.

Applying this rationale to the subject merchandise, Customs finds that the “Lion Wash Mitt” is similar to the baby chick wash mitt and serves an essentially functional purpose identical to that of a wash mitt. None of the features of the instant wash mitt would obstruct its intended use as a wash mitt. Although the “Lion Wash Mitt” may add an element of play to the bathing process, the article is designed as a wash mitt and is classifiable under heading 6302, HTSUSA.

Items which are merely wash mitts with a cute animal motif are classified under heading 6302, HTSUSA. See HQ 087397 (wash mitt with a hippopotamus face design), NY E85176 (wash mitt stylized to resemble a bunny), and NY B87672 (“Mickey Mouse” wash mitt). However, other items are so much like hand puppets, that they are considered to be of that class or kind and are classified as toys. Customs will consider
the construction of the product, how and where it is sold and how it is advertised. Classification of these types of articles has been made on a case by case basis.

Customs has classified animated articles or articles which have faces or mouths which can be activated as toys under heading 9503, HTSUSA. In NY A82887, Customs classified a “Lamb Hand Puppet” designed to entertain and encourage play activity for a child in the bath under heading 9503, HTSUSA. The hand puppet depicted a lamb and the user could manipulate the head and mouth portions. In NY A80714, Customs classified a “One Hundred and One Dalmatian Puppy” hand puppet intended for play in the bath under heading 9503, HTSUSA. The hand puppet depicted the head and neck of a dog with long floppy ears and the head and mouth portions could be manipulated. For other rulings in which the head and mouth portions of puppets could be manipulated or activated, see NY B89549, NY C80805 and NY 806703. The stuffing behind the face of the “Lion Wash Mitt” does not allow for activation or manipulation of the lion’s head and the mouth cannot be activated like the majority of the bath puppets. The only feature that can be manipulated is the single “paw” made up from the thumb portion of the mitt. We note that the instant article is primarily flat and one-dimensional. Thus, the “Lion Wash Mitt” does not appear to be as elaborate or animated as the bath puppets classified as toys.

In many cases, Customs has found that any functional use as an aid in bathing was overshadowed by the nature of the article’s construction and primary use as a toy for amusement purposes. In NY 806703, Customs classified frog and fish bath puppets with features such as sewn-on eyes, extended gills, raised textile fin, gaping mouth and protruding tongues under heading 9503, HTSUSA. Customs stated that the bath puppets, with their full-figured, comical depiction of animals, bright colors, and soft, manipulative character, all of which are common characteristics of stuffed toy animals used for child’s play, had the general appearance and play value of a stimulating toy for young children. Customs found that the use as amusement for a child seemed to be the principal use for the articles, while the utilitarian feature as bath mitts seemed to be ancillary. Customs noted that the bath puppets served as a source of amusement while bathing without being used as a wash mitt and that their primary commercial value seemed to be their play value. For other rulings consistent with this position see NY C82617 (elephant puppet used as a functional bath mitt but primary function was to amuse), NY A82887 (lamb hand puppet’s functional use as bathing aid overshadowed by primary use as toy), NY D88879 (“Baby Scrubs™” suitable for performing a cleaning or scrubbing function but principle use was to amuse the child) and NY E85296 (“Bath Time Puppets” suitable for use as a hand wash mitt but principal use was as a source of amusement). The instant “Lion Wash Mitt” is easily distinguishable from a stuffed toy animal in that it is mitt-shaped and primarily flat. The mitt is readily recognizable as a wash mitt rather than a hand puppet. The “Lion Wash Mitt” does not have independent play value and only serves as a source of entertainment while using the article as a
wash mitt. Thus, Customs finds that the amusement value of the “Lion Wash Mitt” does not exceed its primary use as a wash mitt.

The submitted “Lion Wash Mitt” was examined by the National Import Specialists for toys. In their opinion, the mitt is not eligible for classification as a toy because there is no evidence that it is principally used as such, while there is evidence that it is used as a wash mitt. Unlike the bath puppets classified under heading 9503, HTSUSA, the “Lion Wash Mitt” is not so much akin to a puppet that it overshadows its obvious function as a bath mitt. The “Lion Wash Mitt” is merely a wash mitt decorated to resemble a lion; it is not a lion puppet that can also be used in the bath. An article must have features which distinguish it from a mere wash mitt with an animal design to be classified as a toy. The face or body should be able to be manipulated for amusement in order to be classified as a toy. Lastly, we note that the importer’s catalogue covers a variety of bath or grooming related products and that the “Lion Wash Mitt” is advertised with other bath articles. The submitted “Lion Wash Mitt” is distinguishable from the bath puppets classified under heading 9503, HTSUSA, and is a bath mitt classified under heading 6302, HTSUSA.

HOLDING:

The “Lion Wash Mitt” is classifiable under subheading 6302.93.1000, HTSUSA, which provides for “[b]ed linen, table linen, toilet linen and kitchen linen: [o]ther: [o]f man-made fibers: [p]ile or tufted construction.” The general column one duty rate is 6.5 percent ad valorem and the quota category is 666.

The designated textile and apparel category may be subdivided into parts. If so, visa and quota requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bilateral agreements which are subject to frequent renegotiations and changes, to obtain the most current information available, we suggest that you check, close to the time of shipment, the Status Report on Current Import Quotas (Restrain Levels), an internal issuance of the U.S. Customs Service, which is available for inspection at your local Customs office.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories applicable to textile merchandise, you should contact your local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

Sincerely,

John Durant, Director
Commercial Rulings Division


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