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NY F82450




February 8, 2000

CLA-2-95:RR:NC:2:224 F82450

CATEGORY: CLASSIFICATION

TARIFF NO.: 9503.49.0025

Scott Bannon
Orchard International Inc.
275 Superior Blvd.
Mississauga, Ontario
Canada L5T 2L6

RE: The tariff classification of Terry Bath Sponges from Canada.

Dear Mr. Bannon:

In your letter dated January 26, 2000, you requested a tariff classification ruling.

There are two items submitted for our consideration. One item is described as a Cow Bath Sponge and is an amusing full-figured cartoon replica of a cow constructed of 100 percent terry knit cotton with sisal loop pile knit material covering the cow's belly. The article is filled with polyester materials and plastic beads in the belly area.

The second item, described as a Hippopotamus Hand Puppet Sponge is a cartoon depiction of a hippo constructed in the configuration of a hand puppet. The puppet is made of 100 percent terry knit cotton with sisal loop pile knit material covering the belly. The sisal loop pile knit material enables the child to use the products as bath sponges.

Merchandise imported into the United States is classified under the Harmonized Tariff System of the United States Annotated (HTSUSA). Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which otherwise requires, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUSA and are to be considered statutory provisions of law for all purposes.

GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in order.

Heading 9503, HTSUSA, provides, in part, for toys representing animals or non-human creatures. Although the term "toy," in general, is not specifically defined in the tariff, the Explanatory Notes to chapter 95, HTS, indicate that "this chapter covers toys of all kinds whether designed for the amusement of children or adults." It is Customs' position that the "amusement" requirement means that toys should be designed and used principally for amusement and that any utility associated with the article is clearly a secondary or incidental purpose.

The Explanatory Notes to the Harmonized Commodity Description and Coding System (Explanatory Notes or ENs), including the Subheading Explanatory Notes, although not dispositive or legally binding, provide a commentary on the scope of each heading and certain subheadings of the HTSUSA, and are generally indicative of the proper interpretation of such headings and subheadings. Customs believes the notes should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The Explanatory Notes to heading 9503 state that certain toys (e.g., electric irons, sewing machines, musical instruments, etc.) may be capable of a limited "use"; but they are generally distinguishable by their size and limited capacity from real sewing machines, etc.

It is our contention that however suitable the puppet figure or the three-dimensional cow figure may be as a wash instrument, the figures are primarily toy playthings. Use as wash items is secondary in the hands of the ultimate user.

The applicable subheading for the Cow Bath Sponge and the Hippopotamus Hand Puppet Sponge will be 9503.49.0025, HTSUSA, the provision for toys representing animals or non-human creatures: other toys. 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 the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Tom McKenna (212) 637-7011.

Sincerely,

Robert B. Swierupski
Director,
National Commodity

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