HQ 951409: Reconsideration of HQ 089775; printed sewn ball skin of textile, subheading 6307.90.9480, HTSUSA

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                                




                            HQ 951409

                          June 2, 1992


CLA-2  CO:R:C:T  951409  jb

CATEGORY:  CLASSIFICATION

Area Director
N.Y. Seaport Area
6 World Trade Center, Suite 716
New York, NY 10048-0945

RE:  Reconsideration of HQ 089775; printed sewn ball skin of
     textile, subheading 6307.90.9480, HTSUSA

Dear Sir:

     This letter is in response to your request, dated March 18,
1992, for reconsideration of HQ 089775, dated January 23, 1992,
regarding the classification under the Harmonized Tariff Schedule
of the United States Annotated (HTSUSA), under subheading
6307.90.9480, of a printed sewn ball skin of textile.

     The article at issue, at the time of importation into the
United States, enters as an unstuffed ball skin which has
undergone a process of cutting, sewing and clipping in Mexico. 
Once shipped back to the United States it is stuffed with kapok
and a chimer is subsequently inserted.

     The cited ruling states that "despite the ball skin's
nursery rhyme motif, the unstuffed ball skin is intended to serve
as an educational item."  Following this reasoning, the article
is taken out of the toy heading and entered under other made up
textile articles under heading 6307, HTSUSA.

     It was correctly brought to our attention that there is some
inconsistency in the dicta of that ruling.  While under the
former tariff, the Tariff Schedules of the United States
Annotated (TSUSA), there was no provision for educational toys,
the HTSUSA introduced the educational toy concept.    

     The Explanatory Notes (EN) to the HTSUSA, the official
interpretation of the tariff at the international level,  include
within the toy heading, educational toys.  As such, what was
stated in HQ 089775, i.e., that the article is educational and
therefore not a toy, is erroneous. 

     While we acknowledge this inconsistency, we are unprepared
at this time to modify that ruling.  Before a ruling is modified
or revoked, there must exist a compelling need, upon which that
modification or revocation must be based.  Such a compelling need
can only be substantiated by a legal motive.  As it appears to
date, no legal motive is present.  

     The argument was advanced that though the condition of the
merchandise as imported controls classification, exception should
be made where classification is dependent upon use.  Though this
is a valid argument it does not apply to this particular article. 
When the chime ball enters the United States it does so as a flat
(unstuffed) ball skin.  It is only after it enters the United
States that it is stuffed with the kapok and the chime ball is
inserted.  

     Classification of merchandise under the HTSUSA is governed
according to the General Rules of Interpretation (GRI's), taken
in order.  GRI 1 provides that classification is determined first
in accordance with the terms of the headings of the tariff and
any relative section or chapter notes.  Where goods cannot be
classified solely on the basis of GRI 1, the remaining GRI's will
be applied taken in order.

     GRI 2(a) governs the classification of three types of
articles: (1) those that are incomplete or unfinished and have
the essential character of the finished or complete article, (2)
complete or finished articles that are unassembled or have been
disassembled, and (3) incomplete or unfinished articles that are
disassembled or unassembled but have the essential character of
the complete or finished article.   

     This rule provides that these three types of articles shall
be classified in the same way as those that are complete.  This
rule, of course, does not apply unless the assembled parts are
present for entry at the same time.  The linchpin of the rule
being that, upon entry, whatever the state of completion of the
article, it must have the essential character of the completed
article.  In this case, upon entry, the article is a flat ball
skin.  It cannot be said that at such time the essential
character of the article is that of a chime ball. 
     
     As such, it remains that one of the most basic tenets of
Customs laws applies; merchandise must be classified in the
condition in which it is imported.  In the case of the instant
article, that means it is the unstuffed ball skin, without the
kapok stuffing and chimer, which is considered for
classification.    

     We will, in the future, be more consistent in the use of
terms regarding the concept of toys and educational toys.  At the
present time, unless questions should arise concerning the
classification of the item itself, we will not modify HQ 089775,
and accordingly, that ruling will stand.


                           Sincerely,




                           John Durant, Director
                           Commercial Rulings Division