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