us-cbp-cross-rulings-hq-083885•HQ 083885: Internal Advice 3/89 concerning the classification of a "Huddles soft sport art" item
HQ 083885: Internal Advice 3/89 concerning the classification of a "Huddles soft sport art" item
us-cbp-cross-rulings-hq-083885HQ 083885: Internal Advice 3/89 concerning the classification of a "Huddles soft sport art" itemGuidance
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 083885
July 18, 1989
CLA-2 CO:R:C:G 083885 LS
CATEGORY: Classification
TARIFF NO.: 367.6325, TSUSA, 6304.93.00, HTSUSA
Newark Area Director of Customs
Airport International Plaza
Newark, New Jersey 07114
RE: Internal Advice 3/89 concerning the classification of a
"Huddles soft sport art" item
Dear Sir:
This request for Internal Advice was initiated by a letter
dated December 9, 1988, from Mr. John Dillion, on behalf of his
client, MDV, R&D Marketing, Inc.
FACTS:
The submitted sample is known as a "Huddles soft sport art"
item which takes the shape of a caricature football player, and
measures approximately 19 inches by 24 inches. The printed front
shell is made of 65 percent polyester and 35 percent cotton and
the back shell is made of nylon taffeta. The article has a foam
filling of approximately 1/4 inch thick, which is made of 100
percent polyester. Sewn onto the back shell is a textile product
identification label which is required by Federal Trade
Commission regulations. Above that label is a trademark
label/tag which is folded vertically in the form of a loop, and
is sewn to the back shell with the same stitching as the
identification label. The front of the label has the National
Football League (NFL) logo and states "NFL Officially Licensed
Product." The back half of the label states "M.D.V. Mkt Inc,
Atlantic Highlands, N.J., Made in Korea." The sample was
submitted in a plastic bag, affixed to which is a round sticker
with the following printed words: "USES: Collectable. Wall
Decoration. Stadium Cushion. Autographs."
-2-
The importer, MDV, R&D Marketing, Inc., maintains that the
subject item is a "multipurpose representation of professional
sports logos," and is primarily used at athletics events as a
banner, autograph pad, or cushion. The importer contends that
the article is not suited for use as a wall hanging. The article
was imported in 1988 and was entered under item 389.62, Tariff
Schedules of the United States Annotated (TSUSA), which provides
for "Articles not specially provided for, of textile materials:
Other articles, not ornamented: Of man-made fibers: Other:
Other."
Although the soft sport art item was classified, as
entered, under item 389.62, TSUSA, this Internal Advice Request
was submitted to Headquarters because there appears to be a
conflict in prior rulings issued to the same importer, MDV, R&D
Marketing, Inc. New York Ruling Letter 821169, dated November
18, 1986, classified a textile "Huddle Character", in the form of
a football team mascot for the Denver Broncos, in item 389.6270,
TSUSA, if the item was in chief value of man-made fibers, or in
item 386.5300, TSUSA, if the item was in chief value of cotton.
Both items 389.6270 and 386.5300, TSUSA, provide for "Articles
not specially provided for, of textile materials." New York
Ruling Letter 826102, dated January 28, 1988, classified the same
Denver Broncos "Huddle Character" in subheading 6307.90.90,
Harmonized Tariff Schedule of the United States Annotated
(HTSUSA), which provides for "Other made up articles: Other:
Other." Neither of these New York rulings mentions the presence
of a fabric loop hanger on the back shell of the article.
Headquarters Ruling Letter (HRL) 079825, dated March 17, 1987,
was also issued to MDV, R&D Marketing, Inc. with regard to a
"Huddle Character" soft sculpture in the shape of a football
player. The article, which had a fabric loop hanger, was
classified in item 367.6325, TSUSA, which provides for "Other
furnishings, not ornamented: Of man-made fibers: Other: Other:
Other: Wall hangings." This ruling was advisory only as to
classification of the article in subheading 6304.99.60, HTSUSA,
which provides for other furnishing articles.
It is the opinion of your office that the subject article
is properly classifiable in item 367.6325, TSUSA, as "Other
furnishings, not ornamented: Of man-made fibers: Other: Other:
Wall hangings." You contend that the NFL label on the back of
the article serves as a hanging loop. You also note that such
labels were ignored in the past for purposes of tariff
classification.
-3-
ISSUE:
(1) Is the Huddles soft sport art article classifiable in
item 367.6325, TSUSA, as a wall hanging, or in item 389.62,
TSUSA, as "Articles not specially provided for, of textile
materials?"
(2) Is the subject article classifiable in subheading
6304.93.00, HTSUSA, as other furnishing articles, or in
subheading 6307.90.90, HTSUSA, as other made up articles?
LAW AND ANALYSIS:
Item 367.6325, TSUSA, which provides for wall hangings of
man-made fibers, is a statistical provision. General
Interpretive Rule 10(e)(i) which, in the absence of authority to
the contrary, applies to the statistical annotations as well as
the statutory provisions, states as follows:
(e) in the absence of special language or
context which otherwise requires--
(i) a tariff classification controlled by
use (other than actual use) is to be determined in
accordance with the use in the United States at, or
immediately prior to, the date of importation, of
articles of that class or kind to which the imported
articles belong, and the controlling use is the chief
use, i.e., the use which exceeds all other uses (if
any) combined;
"Wall hangings" is, in effect, a use provision. We must
therefore determine whether the subject article belongs to a
class or kind of merchandise chiefly used as wall hangings.
Court decisions which set forth some of the criteria for "chief
use," as that term is used in prior tariff acts, have been held
controlling in interpreting the same principle under the TSUSA.
See Hoffschlaeger Co., Ltd. v. United States, 60 Cust. Ct. 497,
501, C.D. 3440 (1968).
-4-
"Chief use" means the principal or predominant use, or the
usual and common use. Neither the fugitive use of an article,
nor the mere susceptibility or capability of use, is a
determinative factor as to chief use. Howland v. United States,
53 CCPA 64, C.A.D. 878 (1966). The claimed uses of the soft
sport art article as a stadium cushion, banner, and autograph pad
are possible uses which are not controlling as to chief use.
Even if the article is given these possible uses, it appears that
it will be utilized most commonly and most often in the home as a
wall hanging in a child's room. The importer has not presented
sufficient evidence as to the article's multipurposes, and has
failed to demonstrate that a wall hanging is not the use which
exceeds all other uses combined.
Although we note that the NFL label/tag can conceivably be
used as a loop to hang the soft sport art item on the wall, our
decision that the subject article is a wall hanging is reached
independent of a determination whether the NFL label/tag
constitutes a hanging loop for purposes of classification. The
presence of a hanging loop is only one factor to consider in the
classification of an article as a wall hanging. However, the
absence of a hanging loop does not preclude classification as a
wall hanging. HRL 060120, dated September 24, 1979, states that
"merchandise may be considered a wall hanging despite the lack
of means of mounting." Based on our adherence to that ruling, we
need not address the issue of whether the trademark label/tag
constitutes a hanging loop for purposes of classifying the
article as a wall hanging.
It is an established principle that where one provision is
limited by a "not specially provided for" clause and the
competing provision is not so limited, the nonlimited term is
generally favored, absent a contrary legislative intent.
Travenol Laboratories v. United States, 83 Cust. Ct. 1, C.D. 1812
(1979), aff'd, 67 CCPA 71, C.A.D. 1247 (1980). Thus, the Huddles
soft sport art item, which is the subject of this Internal Advice
Request, is classifiable in item 367.6325, TSUSA, as "Other
furnishings: wall hangings" rather than in item 389.62, as
"Articles not specially provided for, of textile materials."
It appears that New York Ruling Letters 821169 and 826102,
and HRL 079825 involved the classification of the same soft sport
art items except for different football mascot caricatures. It
also appears that the soft sport art item involved in New York
Rulings 821169 and 826102 had a trademark label/tag and textile
product identification label, while the soft sculpture which was
the subject of HRL 079825 had a fabric loop hanger which was
designed to serve as a means of mounting. The latter difference
- 5 -
alone should not account for the conflicting classifications.
Based on our position set forth in the previous paragraph of this
ruling, and pursuant to 19 CFR 177.9(d), we hereby modify New
York Ruling Letters 821169 and 826102. Ruling 821169 is modified
so as to classify the article in item 367.6325, TSUSA, as a wall
hanging, and ruling 826102 is modified so as to classify the same
article in subheading 6304.93.00, HTSUSA, as other furnishing
articles. (Classification under the HTSUSA will be explained
below.)
The HTSUSA has replaced the TSUSA as of January 1, 1989.
Classification of products under the HTSUSA is governed by the
General Rules of Interpretation (GRI's). GRI 1 provides that
classification is determined first in accordance with the terms
of the headings and any relative section or chapter notes. Since
there is no specific heading which provides for wall hangings, by
name, we refer to GRI 3 which applies to goods classifiable under
two or more headings. The competing headings are 6304, which
provides for "Other furnishing articles, excluding those of
heading 9404," and 6307, which provides for "Other made up
articles."
GRI 3(a) provides that the heading which provides the most
specific description shall be preferred to headings providing a
more general description. The Explanatory Notes to heading 6307
state that the heading covers made up articles of any textile
material which are not included more specifically in other
headings of Section XI. Since the Huddles soft sport art item is
considered a furnishing, it is more specifically provided for
under heading 6304 than heading 6307. In addition, the
Explanatory Notes to heading 6304 state that the heading covers
wall hangings.
Additional U.S. Rule of Interpretation 1(a), HTSUSA, states
the same principle set forth in General Interpretive Rule
10(e)(1), TSUSA, quoted above, with respect to a tariff
classification controlled by use, except that it uses the term
"principal use" rather than "chief use." Principle use is that
use which exceeds any other single use. The importer has failed
to demonstrate that the subject article's use as a wall hanging
is not the use which exceeds any other single use. Therefore, we
find that the Huddles soft sport art item is also a wall hanging
under the HTSUSA. The applicable provision under the HTSUSA is
subheading 6304.93.00, which provides for "Other furnishing
articles: Other: Not knitted or crocheted, of synthetic
fibers."
-6-
HOLDING:
For the foregoing reasons, the Huddles soft sport art item
is classifiable under item 367.6325, TSUSA, as "Other
furnishings, not ornamented: Of man-made fibers: Other :
Other: Other: Wall hangings," textile category 666, dutiable at
the 1988 rate of 8.5 percent ad valorem. Under the HTSUSA, the
article is classifiable under subheading 6304.93.00, which
provides for "Other furnishing articles: Other: Not knitted or
crocheted, of synthetic fibers," textile category 666, dutiable
at the rate of 10.6 percent ad valorem.
For the reasons set forth in this ruling, New York Ruling
letters 821169 and 826102 are modified. Ruling 821169 is
modified so as to classify the article in item 367.6325, TSUSA,
as a wall hanging, and ruling 826102 is modified so as to
classify the same article in subheading 6304.93.00, HTSUSA, as
other furnishing articles.
Sincerely,
John Durant, Director
Commercial Rulings Division
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