CLA-2 RR:CR:TE 965259 BAS
Mr. Michael Manzi, Esquire
59 Jackson Street
Lawrence, Massachusetts 01840-1624
RE: Revocation of HQ 960933, September 30,1997; Classification of a crib safety tent
Dear Mr. Manzi:
This is in reference to Headquarters Ruling Letter (HQ) 960933 issued to you on September 30, 1997 in which you were informed that
HQ 088553, dated November 6, 1991 and HQ 087844, dated November 30, 1990, which concerned your client Tots In Mind, Inc., had been revoked by operation of law. The aforementioned rulings concern the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of a crib tent.
As a result of Bauerhin Technologies Limited Partnership v. United States, 110 F.3d 774, 1997 U.S. App. LEXIS 6214, (CAFC 1997), you were informed that HQ 087844 and HQ 088553 were revoked by operation of law. Accordingly, in HQ 960933, dated September 30, 1997, we found that a crib tent was classified in subheading 9403.90.6000, HTSUSA, which provides for “Other furniture and parts thereof: Parts: Other: Of textile material, except cotton.” We have now had occasion to review that decision and found it to be in error. This ruling letter revokes HQ 960933, dated September 30, 1997.
Pursuant to section 625(c), Tariff Act of 1930 (19 U.S. C. 1625(c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed revocation of
HQ 960933, as described below, was published in the Customs Bulletin, Volume 36, Number 2, on January 9, 2002. The Customs Service received no comments during the notice and comment period that closed on February 8, 2002.
FACTS:
The merchandise under consideration is a crib safety tent. The crib tent identified as a “Cozy Crib Tent” is described as an attachment to and over a crib to prevent injuries that might otherwise occur when a child attempts to climb out of a crib. The item’s upper portion is composed of
knit mesh net material and the sides are composed of woven nylon material. The crib tent is attached to a crib by means of polyester cord ties and straps with hook and loop type fabric fasteners. There is a plastic zipper opening on the front that keeps the child safely in the crib. The framing is made of fiberglass rods with metal attachments.
ISSUE:
Whether the crib tent is properly classifiable in heading 9403, HTSUSA, which provides for other furniture and parts thereof or in heading 6304 HTSUSA, as an other furnishing article?
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 crib safety tent is potentially classifiable in two HTSUSA headings. One possible heading is 9403, HTSUSA, which provides for other furniture and parts thereof. The other possible heading is heading 6304, HTSUSA, which provides for other furnishing articles, excluding those of heading 9404, HTSUSA.
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 9403, HTSUSA, includes “Other furniture and parts thereof.” The subheadings include inter alia metal, wooden, plastic and bamboo furniture. The ENs to heading 9403 state that the heading covers furniture and parts thereof, not covered by the previous headings. It includes inter alia furniture for general use (e.g. cupboards, show-cases, tables, telephone stands, writing desk, escritoires, book-cases, and other shelved furniture), and also furniture for special uses. Other examples
listed include folding beds, play-pens, cabinets, bread chests, wardrobes, clothes lockers, card index files, school desks, laboratory benches, drawer cupboards etc. While a crib is similar to the items listed in the exemplars to heading 9403, HTSUSA, the crib tent is an accessory to the crib rather than a part of the crib.
In Bauerhin Technologies Limited Partnership v. United States, 110 F.3d 774, 1997 U.S. App. LEXIS 6214, (CAFC 1997), the Court addressed the issue of whether or not a canopy designed to fit over a child automobile safety seat which was imported separately and sold as part of the seat to which it was attached was a “part” of the child safety seat for classification purposes. The Court held that because the canopy was dedicated for use with the car seat it was properly considered a “part” under the HTSUSA and therefore classifiable in subheading 9403.90.8080, HTSUSA, which provides for other furniture and parts thereof: parts; other: other, other.
Notably, in Bauerhin the canopies that were classified as parts of car seats were specially designed to fit over child automobile safety seats. [Emphasis added]. Although the canopies were imported separately from the seats with which they were to be used, they were sold as parts of the seats to which they were attached. In contrast, the Cozy Crib Tent at issue is not sold as part of the crib to which it attaches. The Cozy Crib Tent is an optional item that is sold separately. While the canopy discussed in Bauerhin is designed to fit a particular car seat, the Cozy Crib Tent could be used with any crib. Thus the Bauerhin rationale does not extend to the instant merchandise. Accordingly, the crib safety tent is not properly classified as a part of furniture in heading 9403, HTSUSA.
HEADING 6304, HTSUSA
Having determined that the crib safety tent is not properly classifiable as a part of furniture under heading 9403, HTSUSA, we must now determine whether or not the crib safety tent is properly classifiable in Heading 6304, HTSUSA, as an other furnishing article. Heading 6304, HTSUSA, provides for “Other furnishing articles excluding those of heading 9404.”
According to Merriam Webster’s Deluxe Dictionary (10th Collegiate Edition, The Readers Digest Association, Inc., 1998 at 746, a furnishing is “an object that tends to increase comfort or utility.” The crib tent is an article that would increase both comfort and utility. The crib tent increases the parents’ comfort level knowing that it will keep the child from
climbing out or falling out of the crib. Thus, it increases the utility of the crib. Knowing that the child is safe within the crib, the parents may use the crib as a place to put the child while they are focusing on another task, thereby increasing the crib’s utility.
The exemplars listed in the ENs to heading 6304, HTSUSA, include inter alia wall hangings and textile furnishings for ceremonies, mosquito nets and bedspreads, cushion covers, loose covers for furniture, table covers and antimacassars. Many of these exemplars are united by the fact that they serve a protective or decorative function. Wall hangings, textile furnishings and cushion covers all form part of a room’s décor. Other exemplars listed in the ENs serve a protective function in addition to a decorative function. That is, they protect either people (the mosquito nets) or furniture (loose covers for furniture or table covers). The subject merchandise is similar to the mosquito netting in that both are composed of net material and both serve to protect persons. Mosquito netting protects people from harmful insect bites as the crib tent protects babies from harmful falls and potential injuries. Mosquito netting, draped over a bed, may also serve a decorative function. Accordingly, the crib safety tent is “ejusdem generis” or “of the same kind” of merchandise as the exemplars
listed in heading 6304, HTSUSA.
HOLDING:
The “Cozy Crib Tent,” composed of knit mesh material and woven nylon material is properly classified in subheading 6304.91.0040, HTSUSA which provides for “Other furnishing articles, excluding those of heading 9404: Other: Knitted or crocheted, Of man-made fibers.” The general column one rate of duty is 7.5 percent ad valorem. The textile quota category applicable to this provision is 666.
The designated textile and apparel category may be subdivided into parts. If so, the 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 your local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.
Sincerely,
John Durant, Director
Commercial Rulings Division