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.\"

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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.

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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).

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\"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

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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.\"

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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