HQ 0951409 - Reconsideration of HQ 089775; printed sewn ball skin of textile, subheading 6307.90.9480, HTSUSA - United States International Trade Commision Rulings

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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

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