CLA-2 RR:CR:TE 964954 BAS
Susan Kohn Ross
S.K. Ross & Assoc., P.C.
Attorneys at Law
5777 West Century Blvd. Suite 520
Los Angeles, CA 90045-5659
RE: Request for Reconsideration of New York ruling letter NY G85738, dated February 9, 2001, concerning an unstuffed BedLounge© cover
Dear Ms. Ross:
This is in reply to your letter, dated April 4, 2001, on behalf of Cequal Products, Inc., requesting reconsideration of New York ruling letter NY G85738 concerning the classification of an unstuffed BedLounge© cover. While NY G85738 did not address classification of the stuffed BedLounge©, you have requested a ruling on the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of the stuffed BedLounge© in addition to the cover. We note that in your initial written submission you requested a classification for the BedLounge© cover with the posture pillow and the BedLounge© cover alone. In subsequent telephone conversations, you requested classification for the BedLounge© cover alone and in its fully stuffed and finished condition. You submitted a sample of the stuffed BedLounge© and cover to assist us in our determination.
FACTS:
The merchandise under consideration is a cushion cover for an item referred to as “The BedLounge”. The article is essentially an updated, enlarged and improved bed rest that falls just short of being considered furniture. The “BedLounge” cover is comprised of a headrest pillow cover and a backrest cover. The backrest is sewn along the sides with apertures allowing access to the posture pillow. The armrest portion has side pockets and a tie string on each side. The pockets are used to hold such items as a television remote, reading glasses, pens, pencils calculators, etc. The ties allow you to fold the arms so that you can store the item when not in use. The headrest pillow cover is sewn on all sides except one, which has a zipper for enclosing the filling cushion, which extends the full length of the headrest. The headrest has one large button on each side, to match the buttons on the armrests. The backrest portion of the pillow is sewn on all sides with a zipper running along the bottom side of it and three quarters of the way down the underside of each arm rest. The cover comes in natural, hunter green, navy blue, burgundy, blue and white stripe, denim, blue on blue stripe, and black. The covers are made from 100 percent cotton woven fabric. The dimensions for the backrest portion of the cover are 27” by 30 “ and for the headrest portion are 20” by 16”.
In addition to being imported as an unstuffed cover for the BedLounge©, the cover is also imported as a finished product, with cushion stuffing. The 100 percent cotton slipcover is filled with layers of fiber, foam, feather and down which are combined into cushion forms. Specifically, the backrest portion of the pillow is composed of fifty percent polyurethane foam pad, forty percent polyester fiber, and ten percent polypropylene. The headrest consists of fifty percent polyurethane foam pad, thirty percent polyester fiber, twenty percent grey goose feathers and ten percent polypropylene. The posture pillow, which measures approximately 13 square inches is inserted into a kangaroo style pocket, is composed of ninety-five percent grey goose feathers and five percent cotton fiber.
ISSUE:
Whether the BedLounge© cover imported alone and imported as a finished BedLounge© are properly classifiable in heading 9404, HTSUSA, as an article of bedding and similar furnishing fitted with springs or stuffed or internally fitted with any material; heading 6302, HTSUSA, as bed linen; or heading 6304, HTSUSA, as other furnishing articles.
LAW AND ANALYSIS:
Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied.
The BedLounge© Cover
The BedLounge© cover is potentially classifiable in the following three HTSUSA headings: heading 9404, HTSUSA, as an article or bedding or similar furnishing fitted with springs or stuffed or internally fitted with any material, heading 6302, HTSUSA as bed linen, or heading 6304, HTSUSA, as other furnishing articles.
When interpreting and implementing the HTSUS, the Explanatory
Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, while neither legally binding nor dispositive, provide a guiding commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. Customs believes the ENs should always be consulted. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
HEADING 9404
Heading 9404, HTSUSA, includes “Mattress supports; articles of bedding and similar furnishing (for example, mattresses, quilts, eiderdowns, cushions, pouffes and pillows) fitted with springs or stuffed or internally fitted with any material or of cellular rubber or plastics, whether or not covered.” The ENs to heading 9404, HTSUSA, state that the heading covers inter alia articles of bedding “which are sprung or stuffed or internally fitted with any material (cotton, wool, horsehair, down, synthetic fibres, etc.).” As this BedLounge© cover is not stuffed or internally fitted with any material, it is precluded from classification in Heading 9404, HTSUSA.
Having precluded classification under heading 9404, the next consideration is to determine under which heading of Chapter 63 the subject merchandise is classifiable. Under Chapter 63, the competing headings for the BedLounge© cover are heading 6302, HTSUSA, which provides for inter alia, bed linen and heading 6304, HTSUSA, which provides for other textile furnishing articles, excluding those of heading 9404.
HEADING 6302
Heading 6302, HTSUSA, provides for inter alia, bed linen. The ENs for heading 6302, HTSUSA, state that bed linen includes, e.g. sheets, pillow cases, bolster cases, eiderdown cases and mattress covers.
Relying on Brentwood Originals v. U.S, 73 Cust. Ct. 185, C.D. 4572 (1974) and Brentwood Originals v. U.S., 76 Cust. Ct. 195, C.D. 4655 (1976), you argue that the BedLounge© at issue meets the definition of a “bolster” and the BedLounge© cover should therefore be classified as a bolster cover under heading 6302.31.9030, HTSUSA.
In Brentwood Originals v. U.S, 73 Cust. Ct. 185, C.D. 4572 (1974), and Brentwood Originals v. U.S., 76 Cust. Ct. 195, C.D. 4655 (1976) the court addressed the proper classification of articles designed to enclose a long wedge shaped cushion and a pillow shaped form with two short arm extensions. In Brentwood Originals, 76 Cust. Ct. 195, CD 4655, (1976), the court found that the covers of a wedge shaped cushion and a pillow with two stubby arms chiefly used to support individuals on a bed were a variety of bedding know as bolster cases with the meaning of item 363.30 of the Tariff Schedules of the United States as modified (TSUS). Item 363.30, TSUS, provided for other bedding, not ornamented. Item 363.30, TSUS, is comparable to tariff item 6302.31.0030, HTSUSA. The court noted that the controlling consideration in its decision was that the articles be chiefly used as bed furnishings. Bolster cases, the court went on to note, describe the covers of articles chiefly used to support individuals on a bed.
In contrast to the cushions in Brentwood, the instant BedLounge© is not chiefly used as bed furnishing. Nor is it chiefly used to support individuals on a bed. Cequal Product Inc.’s marketing of the BedLounge©, emphasizes that it is a “complete revolution in seating technology… offers…highly portable way to have extraordinary comfort and support …wherever you sit!” The marketing brochure features several photos of individuals using the BedLounge© on the floor in various rooms in the house. Accordingly, the BedLounge© cover at issue does not meet the court’s criteria for classification as a bolster cover for purposes of classification in heading 6302, HTSUSA.
Notably, the articles at issue in Brentwood were classified under the TSUS and the terminology for classification has changed under the HTSUSA. Rather than examining an article’s “chief use,” the HTSUSA, looks to an article’s principal use to determine proper classification. “Chief use” is the use which exceeds all other uses (if any) combined. See HQ 083885, dated July 18, 1989. “Principal use” is that use which exceeds any other single use. HQ 083885, dated July 18, 1989. The importer has not demonstrated that the use of the BedLounge© on a bed exceeds any other single use. In the instant case, rather Cequal’s brochure touts the use of the BedLounge© anywhere in the house not just on the bed. Accordingly, the principle use of the BedLounge© is not on the bed and therefore it follows that the BedLounge© cover should not be classified under subheading 6302, HTSUSA.
HEADING 6304
Having precluded classification in Heading 6302, HTSUSA, we must now examine whether the BedLounge© cover is properly classified in Heading 6304, HTSUSA. Heading 6304, HTSUSA, provides for other furnishing articles, excluding those of heading 9404, HTSUSA. The ENs to heading 6304 provide that the heading covers inter alia furnishing articles
of textile materials including bedspreads. . . . (but not including bed coverings of heading 9404), cushion covers and loose covers for furniture. The BedLounge© cover at issue is similar in function to a cushion cover. That is, it functions to protect and decorate the cushion it covers. The BedLounge© cover is similar to other items we have classified as cushion covers in that it is sewn on three sides with a zipper on one side for the insertion of a cushion. See HQ 954196, dated September 15 1993; HQ 953033, dated February 24, 1993, HQ 953004, dated February 24, 1993, HQ 952492, date January 29, 1993. The instant BedLounge© cover, moreover, conforms to the shape of the BedLounge© cushion as most cushion covers conform to the shape of the cushion covered. See HQ 951528, dated August 14, 1992; HQ 084324, dated July 20, 1989; NY C85924, dated April 7, 1998. Accordingly, the instant merchandise is ejusdem generis with the exemplars listed in the ENs to heading 6304 and is properly classified in heading 6304, HTSUSA.
This holding is consistent with other Customs rulings where slipcovers have been classified under heading 6304, HTSUSA. See HQ 084323, dated July 20, 1989; NY B84450, dated May 12, 1997. This holding is also consistent with rulings where other covers for seats have been classified under heading 6304. See HQ 951528, dated August 14, 1992 (cushion cover for an infant carseat is classified in heading 6304); HQ 085885, dated January 23, 1990 (infant car seat covers are more specifically provided for as “like” furniture slipcovers than as parts of cushions and are therefore properly classified in heading 6304, HTSUSA).
Having established that the proper heading for the BedLounge© cover is heading 6304 HTSUSA, classification must then be made at the appropriate subheading level. Accordingly, because the BedLounge© cover is composed of 100 percent cotton twill, it is properly classifiable under subheading 6304.92.0000, HTSUSA, which provides for “Other furnishing articles, excluding those of heading 9404: Other: Not knitted or crocheted, of cotton.”
The BedLounge©
The BedLounge© when imported with internal stuffing as a finished product is potentially classifiable in the following HTSUSA headings: heading 9404, HTSUSA, as an article or bedding or similar furnishing fitted with springs or stuffed or internally fitted with any material, or heading 6304, HTSUSA, as other furnishing articles, excluding those of heading
9404, HTSUSA.
HEADING 9404
Heading 9404, HTSUSA, provides for “Mattress supports; articles of bedding and similar furnishing (for example, mattresses, quilts, eiderdowns, cushions, pouffes and pillows ) fitted with springs or stuffed or internally fitted with any material or of cellular rubber or plastics, whether or not covered. The ENs specifically include pillows, cushions and bolsters. The BedLounge© which functions as a portable cushion is ejusdem generis with the exemplars listed in heading 9404, HTSUSA. That is, the exemplars are united by the fact that they provide support and comfort to the body. Pillows and cushions both function to increase comfort and allow individuals to lounge or recline with more comfort and support. The BedLounge© is advertised in Cequal’s brochure as a “better way to lounge in extraordinary comfort.” It is also advertised as an “easy chair, a portable seating solution.” Having a headrest, posture pillow and two armrests, its construction clearly provides support for the body. Therefore the BedLounge© is properly classifiable in heading 9404, HTSUSA.
This holding is consistent with other rulings in which items supporting the body, though not necessarily intended as bedding, have been classified in Heading 9404, HTSUSA. See HQ 955664, dated May 24, 1994 (stadium seat cushion); HQ 954864, dated October 20, 1993 (stadium seat cushion): HQ 951528, dated August 14, 1992 (foam cushion to accommodate the body of an infant sitting in a chair); HQ 950492, dated January 28, 1992 (seat cushions with fabric ties); HQ 950370, dated January 7, 1992 (stuffed seat cushion for rocker); HQ 950252, dated December 4, 1991 (cushion to fit over back frame and seat of chair), HQ
951526, dated August 14, 1992; (infant seat cushion) HQ 089776, dated October 21, 1991 (foam filled chair cushion) and HRL 089018, dated
August 9, 1991 (infant carseat cushion).
In addition, the BedLounge© is very similar to a “husband chair,” a cushion with armrests that may be used on a bed, floor, or propped against furniture to give support to one’s back. Stuffed husband pillows have been classified in heading 9404, HTSUSA. See NY H81497, dated June 14, 2001. Accordingly, the BedLounge© when imported with the stuffing is properly classifiable in heading 9404.90.1000 which provides for “Mattress supports; articles of bedding and similar furnishing (for example, mattresses, quilts, eiderdowns, cushions, pouffes and pillows) fitted with springs or stuffed or internally fitted with any material or of cellular rubber or plastics, whether or not covered: Other: Pillows, cushions and similar furnishings: Of cotton.”
HEADING 6304
Heading 6304, HTSUSA, provides for other furnishing articles, excluding those of heading 9404, HTSUSA. As the BedLounge©, when imported in finished condition is stuffed and therefore properly classifiable in heading 9404, HTSUSA, it is precluded from classification in heading 6304, HTSUSA.
HOLDING:
The BedLounge© cover composed of 100 percent cotton is properly classified in subheading 6304.92.0000, HTSUSA, which provides for “Other furnishing articles, excluding those of heading 9404: Other: Not knitted or crocheted, of cotton.” The general column one rate of duty is 6.5 percent ad valorem. The textile quota category applicable to this provision is 369.
The BedLounge©, when imported in finished condition, stuffed with a combination of fiber, foam, feather and down shaped to form the cushion is properly classified in subheading 9404.90.1000, HTSUSA which provides for “Mattress supports; articles of bedding and similar furnishing (for example, mattresses, quilts, eiderdowns, cushions, pouffes and pillows) fitted with springs or stuffed or internally fitted with any material or of cellular rubber or plastics, whether or not covered, Other: Pillows, cushions and similar furnishings: of cotton.” The general column one rate of duty is 5.4 percent ad valorem. The textile quota category applicable to this provision is 369.
The designated textile and apparel category may be subdivided into parts. If so, visa and quota requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bilateral agreements which are subject to frequent renegotiations and changes, to obtain the most current information available, we suggest your client check, close to the time of shipment, the Status Report on Current Import Quotas (Restraint Levels), an internal issuance of the U.S. Customs Service, which is updated weekly and is available for inspection at your local Customs office. The Status Report on Current Import Quotas (Restraint Levels) is also available on the Customs Electronic Bulletin Board (CEBB) which can be found on the U.S. Customs
Service Website at www.customs.gov.
Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa)
categories, your client should contact the local Customs office prior to
importing the merchandise to determine the current applicability of any import restraints or requirements.
Sincerely,
John Durant, Director
Commercial Rulings Division