The tariff classification of animal-shaped cool pack covers from China

N243460 July 24, 2013 CLA-2-63:OT:RR:NC:N3:351 CATEGORY: Classification TARIFF NO.: 6307.90.9889 Mr. Robert Glover L.E. Coppersmith, Inc. 525 South Douglas Street El Segundo, CA 90245 RE: The tariff classification of animal-shaped cool pack covers from China Dear Mr. Glover: In your letter dated June 24, 2013, you requested a tariff classification ruling on behalf of your client, J.L. Childress Company, Inc., of Orange, California. You submitted two samples and photographs of a line of animal-shaped cool pack covers, known commercially as the “Boo Boo Zoo First Aid Cool Packs,” item 2303. The cool pack covers are made up of 100% polyester woven fabric and measure approximately 5”W x 6-1/2”H x 1/2”D. They have stuffed arms and faces resembling animals; the samples we received are the lion and penguin, and there are also an elephant and monkey. To use, an ice pack is placed through an opening in the back into the cavity in the back of each cover with a hook-and-loop closure. At the time of importation these covers will not contain an ice pack. The applicable subheading for item 2303 Boo Boo Zoo First Aid Cool Pack cover imported without an ice pack, will be 6307.90.9889, Harmonized Tariff Schedule of the United States, (HTSUS), which provides for other made up textile articles, other. The rate of duty will be 7% ad valorem. In your request you state that the Boo Boo Zoo First Aid Cool Packs should be classified as a toy under subheading 9503.00.00, HTSUS.  You cite several rulings which you believe contain products that are similar to the instant merchandise.  You state that the animal-shaped packs will be used for “comfort, companionship and amusement.” However, although the term “toy” is not defined in the tariff, the Explanatory Notes to Chapter 95 indicate that a toy is an article designed for the amusement of children or adults.  It has been the Custom & Border Protection (CBP) position that the “amusement” requirement means that a toy should be designed and used principally for amusement of children or adults and should not serve a utilitarian purpose.  The U.S. Court of International Trade has construed heading 9503, HTSUS, as a “principal use” provision within the meaning of Additional U.S. Rule of Interpretation 1(a), HTSUS, as it pertains to “toys.” See Minnetonka Brands v. United States, 110 F. Supp. 2d 1020, 1026 (CIT 2000).  Therefore, classification under the heading is controlled by the principal use of goods of that class or kind to which the imported goods belong in the United States at or immediately prior to the date of the importation. In determining whether the principal use of a product is for amusement, and thereby classified as a toy, CBP considers a variety of factors including general physical characteristics, the expectation of the ultimate purchaser, channels of trade, and the environment of sale (accompanying accessories, manner of advertisement and display). The Boo Boo Zoo First Aid Cool Packs are not principally designed for amusement.  While a child may derive some amusement with the animal-shaped packs, any amusement is incidental to the utilitarian function of the packs.  They are principally used to protect the skin from direct contact with the frozen ice pack after sustaining an injury.  Therefore, the item is excluded from Chapter 95 by application of Note 1(v).  Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/. The samples will be retained as part of our official case files. This ruling is being issued under the provisions of Part 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 Mitchel Bayer at (646) 733-3102. Sincerely, Thomas J. Russo Director National Commodity Specialist Division