CLA-2 CO:R:C:G 080899 CMR 824139

Ralph H. Sheppard, Esq.
Adduci, Dinan, Mastriani, Meeks & Schill
551 Fifth Avenue
New York, New York 10176

RE: Classification of a "Hugster" from Korea

Dear Mr. Sheppard:

This is in response to your letter of June 22, 1987, requesting a ruling on the classification of a "Hugster" from Korea on behalf of your client "Original Ideas."

FACTS:

The sample submitted, called a Hugster, is a sleeping-bag type article for children. It has an attached bear head and four legs with paws. It is of plush man-made fiber construction with man-made fiber as the component material in chief value. The Hugster consists of three parts: an upper torso, a lower torso, and an inflatable cell.

The upper torso consists of the stuffed bear head, the chest area, and two arms with paws. It measures approximately 28 inches by 17 inches. The head measures approximately 17 inches in diameter, and is stuffed with man-made textile material. The arms and upper torso contain man-made fill material. The back of the chest portion of the upper torso and the bottom of the stuffed head are covered by a man-made textile fabric. A pocket designed to contain the inflatable cell is created by a portion of man-made textile fabric (different from that previously mentioned) sewn to all except the bottom of this back covering. A thin elastic band is stitched along the open side of the fabric creating the pocket. The arms and paws are approximately 23 inches long. The paws are lined with the same man-made textile fabric used to cover the back. This creates pockets which children can insert their hands into and use to wrap the arms around them.

The lower torso measures approximately 42 inches long and 28 inches wide. It is constructed with an upper and lower layer similar to a sleeping bag, open at the top and side and sealed on

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the opposite side and at the bottom. There are no buttons, snaps, or zipper by which to close the two layers. The outside of the upper layer is made of the same plush material as the upper torso. The inside of the upper layer and the inside of the lower layer are made of the same man-made textile material used to cover the back of the upper torso. The outside of the lower layer is made of the same man-made textile material used to construct the pocket on the back of the upper torso. Two stuffed bear feet are sewn to the bottom of the lower torso. A silk screen logo appears on one paw pad. The upper and lower torsos are attached by a zipper.

The inflatable cell is made of plastic with an air valve by which to inflate it. A hard-board panel is sealed under plastic against the back of the cell. When inflated and inserted into the pocket in the back of the Hugster, the cell elevates the head and upper torso.

The Hugster is designed to be used by children when reading or watching television and will be marketed for such use. The sample submitted is representative of the various models which will be imported. All will be constructed as described above, but will incorporate the following variations:

a) A T-shirt permanently affixed around and to the upper torso b) Decorative ribbons or textile flowers approximately 3" in diameter sewn to the upper left side of the lower torso c) Colorful stockings which enclose and are permanently affixed to the bear's feet d) A bow tie of textile material affixed under the chin of the bear e) A lacy collar one to two inches wide permanently secured around the neck of the bear f) A textile cap permanently affixed on the bear's head g) A textile applique with "Hugster Created by Robert DeMars" in executed contrasting raised stitching sewn to the upper left hand side of the lower torso

ISSUE:

Whether the Hugster should be classified as an entirety, and if so, whether it should be classified as a toy, an article of pile, or a sleeping bag. Whether the additions to the Hugster to create its variations constitute ornamentation.

LAW AND ANALYSIS:

Various tests exist for determining if separate articles imported together are to be classified as an entirety. In

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Mattel, Inc. v. United States, 8 CIT 323 (1984), the court briefly examined several of the traditional tests to determine if the articles at issue should be classified separately or as an entirety. In Mattel, at 328, the court listed the tests it used in reaching its decision. These tests included: function, use, individual entities, newly created entity, intent, design, and commercial unit. The articles at issue in Mattel, a doll and doll stand, failed under each of these tests and so were classified separately. We believe in the instant case, the three components of the Hugster (the upper torso, the lower torso, and the inflatable cell) successfully meet each of these traditional tests. They were designed to be joined together to form a "complete article of commerce." Altman & Co. v. United States, 13 Ct. Cust. Appls. 315, 318, T.D. 41232 (1925). Each component contributes to the creation of the whole. Separately, they are without commercial value or use.

While the bear head could be viewed by a child as a toy and the lower torso as a kind of sleeping bag, these separate identities are merged when they are joined together and they "form a new and distinct article of commerce having a different character or use" creating an entirety. Mattel at 325. As for the inflatable cell, its separate identity is completely subordinated to that of the whole, the Hugster. See E. M. Stevens Corp. v. United States, 49 Cust. Ct. 203, 204, Abstract 66971 (1962), appeal dismissed, 53 CCPA 155, C.A.D. 5266 (1966).

Having determined that the components of the Hugster form an entirety, we must decide the character or identity of the entirety in order to properly classify it. The Hugster is designed to appeal to children and their imaginations, but it is not chiefly used for mere amusement. It has a functional use which is primary to its amusement value and thus makes it something other than a toy. As for being a sleeping bag, the Hugster does not fit within the commonly understood meaning of a sleeping bag. Webster's II New Riverside University Dictionary defines a sleeping bag as "a large, warmly lined, usu. zippered bag in which a person may sleep outdoors." The Hugster has no means of closure, and although warmly lined, it is not designed for outdoor use.

Since the Hugster is not a toy or a sleeping bag, and there is no eo nomine provision or use provision which is applicable, the Hugster is classifiable in the provision for articles not specially provided for, of textile materials, other articles, not ornamented, of man-made fibers, pile or tufted construction, in item 389.5000, Tariff Schedules of the United States Annotated (TSUSA), no textile category. The rate of duty is 11 per cent ad valorem. This applies to the Hugster sample as submitted with the silk screen print on one paw.

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Headnote 3 of Schedule 3 is applicable to determining whether variations a-g constitute ornamentation. The relevant parts of the headnote are as follows:

3. For the purposes of the tariff schedules -- (a) the term "ornamented" as used with reference to textile fabrics and other articles of textile materials, means fabrics and other articles of textile materials which are ornamented with -- (iii) lace, netting, braid, fringe, edging, tucking, or trimming, or textile fabric; (iv) applique and replique work, . . . .;

We believe the variations constitute ornamentation for tariff purposes. The Hugster is considered complete without the addition of any of the variations. The additions enhance and decorate the completed Hugster. Their decorative effect is more than incidental and they have no apparent funtionality other than decoration. United States v. Endicott Johnson Corp., 67 CCPA 47, 50, C.A.D. 1242, 617 F. 2d 278 (1980).

The applique is described as having the words "Hugster Created by Robert DeMars" in executed contrasting raised stitching sewn to the upper left hand side of the lower torso. While the applique has the function of informing the purchaser of the name of the creator of the article, this function is not of the type sufficient to remove the applique from consideration as ornamentation. See Nissho-Iwai American Corp. v. United States, 11 CIT , 664 F. Supp. 1438 (1987), appeal docketed, No. 87-1388 (Fed. Cir. June 9, 1987).

Under the proposed Harmonized Tariff Schedule of the United States Annotated (HTSUSA), as under the TSUSA, there is no specific name or use provision for classification of the Hugster. The components of the Hugster, the upper and lower torsos, and the inflatable cell of plastic, place the Hugster within the definition of composite goods in General Rule of Interpretation (GRI) 3. Since the upper and lower torsos, and the plastic cell, if separately classified, would fall under different headings of the HTSUSA, GRI 3(b) becomes specifically applicable. It states in pertinent part as follows:

. . ., composite goods consisting of different materials or made up of different components, . . ., which cannot be classified by reference to 3 (a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.

The Explanatory Notes of the Harmonized System in explaining the application of GRI 3(b) provide in pertinent part:

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(VIII) The factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.

It is fairly clear that the plastic cell does not give the Hugster its essential character. It is a minor component in comparison to the upper and lower torsos. The plastic cell is not seen since it is inserted into the back of the upper torso and merely acts to elevate it.

This leaves the upper and lower torsos for consideration. We believe that each equally contributes to the essential character of the Hugster. However, whether viewed separately or together for classification, the upper and lower torsos would place the Hugster under the provision for other made-up textile articles. This is in accord with the above analysis.

HOLDING:

The Hugster is classifiable in the provision for articles not specially provided for, of textile materials, other articles, not ornamented, of man-made fibers, pile or tufted construction, item 389.5000, TSUSA, no textile category. The rate of duty is 11 per cent ad valorem. This applies to the Hugster sample as submitted with the silk screen print on one paw. When ornamented, the Hugster is classifiable in the provision for articles not specially provided for, of textile materials, lace or net articles, whether or not ornamented, and other articles ornamented, other, other, of man-made fibers, item 386.1443, TSUSA, no textile category. The rate of duty is 10 per cent ad valorem.

Under the HSTUSA, the Hugster is classifiable under the provision for other made-up articles, . . .: other: other, in subheading 6307.90.9000, no textile category. The rate of duty is 7 percent ad valorem. However, articles classifiable under subheading 6307.90.9000, HTSUSA, which are products of the Republic of Korea are entitled to duty free treatment under the

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Generalized System of Preferences upon compliance with all applicable regulations. This classification represents the present position of the Customs Service under the proposed HTSUSA. If there are changes before enactment, this advice may not continue to be applicable.


Sincerely,

John Durant, Director
Commercial Rulings Division

6cc: Area Director, New York Seaport
1cc: CITA
1cc: NIS Anthony Falcone