CLA-2 RR:TC:TE 960478 CAB
Melvin E. Lazar, Esq.
Soller, Shayne & Horn
46 Trinity Place
New York, NY 10006
RE: Classification of a used featherbeds; Heading 9404
Dear Mr. Lazar:
This is in response to your inquiry of March 31, 1997,
requesting a tariff classification ruling on behalf of your
client, Williamsburg Feathers Co. Inc., pursuant to the
Harmonized
Tariff Schedule of the United States Annotated (HTSUSA), for used
featherbeds. Samples were not submitted to Customs Headquarters
for examination, however, in July 1996, the subject featherbeds
were examined by Customs in Newark, New Jersey.
FACTS:
The featherbeds at issue are large rectangular fabric cases
loosely filled with feathers. The featherbeds are designed to be
placed on top of a mattress to provide extra comfort. The
feathers are capable of shifting since there are no internal
baffles or quilt stitching to hold the feathers in place. The
examined samples show use and exhibit wear on the outer surface
of the featherbed shell.
You state that the importer imports used feathers which at
the time of importation are contained in used bedding. However,
subsequent to importation into the United States, the feathers
are removed from the shell, repackaged, and are sold to various
wholesalers and jobbers as "used feathers". The used outer shell
is destroyed and does not enter commerce for resale.
ISSUE:
Whether the subject featherbeds are classifiable under
Heading 9404, HTSUSA, or Heading 0505, HTSUSA, or Heading 6701,
HTSUSA?
LAW AND ANALYSIS:
Classification of goods under the HTSUSA is governed by the
General Rules of Interpretation (GRI's). GRI 1 provides that
classification shall be determined according to the terms of the
headings and any relative section or chapter notes. Merchandise
that cannot be classified in accordance with GRI 1 is to be
classified in accordance with subsequent GRI's taken in order.
There are three competing headings in this case. Heading
9404, HTSUSA, is the provision for articles of bedding. Heading
0505, HTSUSA, is the provision for feathers not further worked
than cleaned, disinfected or treated for preservation. Heading
6701, HTSUSA, provides for feathers other than goods of heading
0505.
You assert that you are importing feathers and not
featherbeds and the outer shell is only a simple and inexpensive
method to contain and convey the feathers, and is therefore,
classifiable under Heading 0505, HTSUSA, and alternatively,
Heading 6701, HTSUSA. You specifically state:
This merchandise is imported solely for the
feathers themselves, for the used bedding serve as
packing containers. The intended and actual use of
these feathers in a very different channel of trade, is
what should determine their classification as feathers,
rather than the very transient condition in which they
are imported.
It is a long standing tenet of Customs law that goods are
classified under the tariff in their condition as imported. See,
United States v. Citroen, 223 U.S. 407 (1911). In this instance,
featherbeds, although used and worn, are imported into the United
States, instead of just feathers being imported in the United
States. The legislature specifically provided for the tariff
classification of featherbeds under Heading 9404, HTSUSA.
Heading 9404, HTSUSA, is an eo nomine provision with no limiting
language regarding use. "An eo nomine statutory designation of
an article, without limitations or a shown contrary legislative
intent, judicial decision, or administrative practice to the
contrary, and without proof of commercial designation, will
include all forms of said article." Nootka Packing Co.v United
States, 22 CCPA 464, 470, T.D. 47464 (1935).
You argue that Customs has on occasion departed from the
"condition as imported" criteria, and has looked beyond the
character of the article at the time of importation. You
specifically refer to Headquarters Ruling Letter (HQ) 089090,
dated July 10, 1991. In this case, we agree with you, Customs
did take into consideration the use of the article therein in HQ
089090. You cite the following from United States v. Citroen at
pp. 414-15
First. The rule is well established that in order to
produce uniformity in the imposition of duties, the
dutiable classification of articles imported must be
ascertained by an examination of the imported article
itself, in the condition in which it is imported."
* * *
This, of course, does not mean that a prescribed
rate of duty can be escaped by resort to disguise or
artifice. When it is found that the article imported
is in fact the article described in a particular
paragraph of the tariff act, an effort to make it
appear otherwise is simply a fraud on the revenue, and
cannot be permitted to succeed.
Customs, in HQ 089090, classified a feather duster under
Heading 0505, HTSUSA, the provision for feathers, instead of the
claimed Heading 9607, HTSUSA, the provision for feather dusters.
In HQ 089090, Customs noted that there was a belief that the
importer was attempting to disguise the articles as feather
dusters in order to circumvent the Comprehensive Anti-Apartheid
Act of 1986 which prohibited the importation of agricultural
products from South Africa. Factoring in the language espoused
in United States v. Citroen, Customs stated the following:
We recognize that in the absence of deception,
disguise, or artifice resorted to for the purpose of
perpetuating a fraud upon the revenue, imported
merchandise must be classified in its condition as
imported, and that disassembly after importation is not
relevant for classification purposes. Nonetheless, in
light of counsel's submission regarding the use being
made of the alleged feather dusters, we are of the
opinion that the proffered classification of the
merchandise as feather dusters may well amount to an
attempt to circumvent specific prohibitions established
by Congress.
In essence, as was maintained in United States v. Citroen,
Customs may look beyond the "condition as imported" rationale if
there is reason to believe that the importer is attempting to
circumvent prescribed tariff duties by resorting to illegal
methods. In this case, a featherbed is being imported, and there
is a specific applicable heading for featherbeds. There is no
need for Customs to look beyond the "condition as imported"
rationale since there is no objective basis to believe that an
attempt is being made to circumvent Customs regulations, as
opposed to the case in HQ 089090.
You also refer to Rico Import Co. v. United States, Court of
Appeals Federal Circuit, 12 F.3d 1088 (1993), where the court
concluded that certain imported tubes of vegetable products, made
into reeds for musical instruments, were classifiable as other
vegetable products under Heading 1404, HTSUSA. In the case
therein, Customs argued unsuccessfully that the articles were
classifiable under Heading 1401, HTSUSA, the provision for
vegetable materials of a kind used primarily for plaiting (for
example, bamboos, rattans, reeds, rushes, osier, raffia, cleaned,
bleached, or dyed cereal straw and lime bark). The court
concluded, "The tubes are not suitable for plaiting, and are not
in fact plaited. Rico imports tubes used to make musical
instruments, not plaiting materials. The obvious conclusion is
that the plain language of subheading 1401.90.40, HTSUS, excludes
Rico's goods. The court in Rico was evaluating Heading 1401,
HTSUSA, which is a use provision and not an eo nomine provision
as in this case. Consequently, the plaintiff was able to prove
with objective evidence that the article therein was not being
used in the manner which would dictate classification under
Heading 1401, HTSUSA. Moreover, merely by looking at the
specific wording of Heading 1401, HTSUSA, the court was able to
determine that the article therein was specifically excluded from
the heading. This is not the case in this instance. In this
fact scenario, you have an article that is specifically provided
for under a particular heading with no exclusionary language
present that would limit its classification under that particular
heading.
You refer to the recent decision in Western States Import
Co. Inc. v. United States, Slip Op. 96-96, (Decided June 14,
1996), for the proposition that in some cases, the courts have
looked to an article's post importation use to determine the
proper tariff classification of the article at the time of
importation. Customs is of the belief that the primary issue in
Western States was the court's legal interpretation of the words
in the tariff provision, "not designed for use with tires...."
Since those words, or similar language, are not contained in any
of the provisions being considered, the decision in Western
States is not pertinent to the classification of the instant
goods.
You cite several other cases to support your conclusion that
use of an imported article is important in determining whether
the article is within the scope of an eo nomine provision.
Customs is not persuaded by your argument that use of the subject
featherbed should be factored in when determining whether it fits
within the scope of the eo nomine provision featherbeds under
Heading 9404, HTSUSA. Neither you, nor our own research has
provided us with persuasive evidence that the use of the bedding
after importation should have any bearing on the tariff
classification at the time of importation. The subject articles
are featherbeds, and though used and worn, they remain
featherbeds. Though you contend that the merchandise is being
used solely for the feather interior, it is still capable of
being used as bedding. There is nothing in the tariff, such as
restrictive language from Congress, or the judiciary, that would
require Customs to classify the subject articles as anything
other than as bedding of Heading 9404, HTSUSA. See, HQ 951326,
dated May 29, 1992, where Customs concluded that used lead
batteries that were being imported for the recovery of the metal
were classified as batteries and not as lead waste and scrap; See
also, HQ 956409, dated December 22, 1994, where Customs
classified a featherbed in subheading 9404.90.80. Accordingly,
the imported goods are classifiable under Heading 9404, HTSUSA,
as bedding, and not under either Headings 0505 or 6701, HTSUSA,
as feathers.
HOLDING:
Customs has not been provided with the exact fiber content
of the subject featherbeds. Consequently, if the subject
featherbeds are of cotton and do not contain any embroidery,
lace, braid, etc., they are classifiable in subheading
9404.90.8040, HTSUSA, which is the provision for other pillows,
cushions and similar furnishings; of cotton; other; other of
cotton, not containing any embroidery, lace, braid, edging,
trimming, piping exceeding 6.35 mm or applique work. The
applicable rate of duty is 4.8 percent ad valorem and the textile
restraint category is 369. If the fiber content of the
featherbeds is other than cotton and/or if they contain any
embroidery, lace, braid, edging, trimming, piping exceeding 6.35
mm or applique work, the subheading would change.
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 that you 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 available for
inspection at your local Customs office.
Due to the changeable nature of the statistical annotation
(the ninth and tenth digits of the classification) and the
restraint (quota/visa) categories applicable to textile
merchandise, you should contact your local Customs office prior
to importing the merchandise to determine the current status of
any import restraints or requirements.
Sincerely,
John Durant, Director
Tariff Classification Appeals
Division