HQ H181679
CLA-2 OT:RR:CTF:TCM H181679 TSM
Ms. Rheci Abustan
CHF Industries, Inc.
One Park Avenue
New York, NY 10016
RE: Revocation of NY K83054; Classification of an unfinished duvet cover from China.
Dear Ms. Abustan:
This is in reference to New York Ruling Letter (NY) K83054, issued to CHF Industries, Inc. on March 5, 2004, concerning the tariff classification of an unfinished duvet cover from China. In that ruling, U.S. Customs and Border Protection (“CBP”) classified the subject merchandise under subheading 6302.32.20, Harmonized Tariff Schedule of the United States (“HTSUS”), which provides for “Bed linen, table linen, toilet linen and kitchen linen: Other bed linen: Of man-made fibers: Other.” Upon additional review, we have found this classification to be incorrect. For the reasons set forth below we hereby revoke NY K83054.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625 (c)(1)), 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), a notice was published in the Customs Bulletin, Volume 49, No. 23, on June 10, 2015, proposing to revoke NY K83054, and any treatment accorded to substantially identical transactions. No comments were received in response to this notice.
FACTS:
NY K83054, issued to CHF Industries, Inc. on March 5, 2004, describes the subject merchandise as follows:
The instant sample, referred to as a duvet shell, is an unfinished duvet cover. The cover is comprised of two panels. The top panel is made from 100 percent polyester woven pile fabric. The back is made from 100 percent nylon sateen woven fabric. It is sewn along three sides with an open end along the fourth. After importation, the open end will be hemmed, buttonholes will be made and buttons will be attached.
ISSUE:
Whether the unfinished duvet cover at issue should be classified under subheading 6302.32.20, HTSUS, as “Bed linen, table linen, toilet linen and kitchen linen: Other bed linen: Of man-made fibers: Other,” or subheading 6307.90.98, HTSUS, as “Other made up articles, including dress patterns: Other: Other: Other.”
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). 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 2 through 6 may then be applied in order.
GRI 2(a) states, in pertinent part, that:
Any reference in a heading to an article shall be taken to include a reference to that article incomplete or unfinished, provided that, as entered, the incomplete or unfinished article has the essential character of the complete or finished article. It shall also include a reference to that article complete or finished (or falling to be classified as complete or finished by virtue of this rule), entered unassembled or disassembled.
The HTSUS provisions under consideration are as follows:
6302 Bed linen, table linen, toilet linen and kitchen linen:
Other bed linen:
6302.32 Of man-made fibers:
6302.32.20 Other
* * *
6307 Other made up articles, including dress patterns:
6307.90 Other:
6307.90.98 Other
Legal Note 7 to Section XI (which includes Chapter 63) provides as follows:
For the purposes of this section, the expression "made up" means:
(a) Cut otherwise than into squares or rectangles;
(b) Produced in the finished state, ready for use (or merely needing separation by cutting dividing threads) without sewing or other
working (for example, certain dusters, towels, tablecloths, scarf squares, blankets);
(c) Hemmed or with rolled edges, or with a knotted fringe at any of the edges, but excluding fabrics the cut edges of which have been
prevented from unraveling by whipping or by other simple means;
(d) Cut to size and having undergone a process of drawn thread work;
(e) Assembled by sewing, gumming or otherwise (other than piece goods consisting of two or more lengths of identical material joined end to end and piece goods composed of two or more textiles assembled in layers, whether or not padded); or
(f) Knitted or crocheted to shape, whether presented as separate items or in the form of a number of items in the length.
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While not legally binding on the contracting parties, and therefore not dispositive, the ENs provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the system. CBP believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
The following ENs are relevant to our discussion:
The ENs to GRI 2(a) provide, in pertinent part:
(I) The first part of Rule 2 (a) extends the scope of any heading which refers to a particular article to cover not only the complete article but also that article incomplete or unfinished, provided that, as presented, it has the essential character of the complete or finished article.
(II) The provisions of this Rule also apply to blanks unless these are specified in a particular heading. The term “blank” means an article, not ready for direct use, having the approximate shape or outline of the finished article or part, and which can only be used, other than in exceptional cases, for completion into the finished article or part (e.g., bottle preforms of plastics being intermediate products having tubular shape, with one closed end and one open end threaded to secure a screw type closure, the portion below the threaded end being intended to be expanded to a desired size and shape).
Semi manufactures not yet having the essential shape of the finished articles (such as is generally the case with bars, discs, tubes, etc.) are not regarded as “blanks.”
EN 63.02 provides that:
These articles are usually made of cotton or flax, but sometimes also of hemp, ramie or man made fibres, etc.; they are normally of a kind suitable for laundering. They include:
Bed linen, e.g., sheets, pillowcases, bolster cases, eiderdown cases and mattress covers.
The courts have addressed the meaning of essential character with respect to GRI 2(a) in prior cases. The Pomeroy Collection,, Ltd. v. United States, 559 F. Supp. 2d 1374 (Ct. Int’l Trade 2008); Filmtec Corp. v. United States, 293 F. Supp. 2d 1364 (Ct. Int’l Trade 2003); and Baxter Healthcare Corp. of Puerto Rico v. United States, 22 C.I.T. 82 (1998). The court has specifically noted that the focus of the essential character analysis for purposes of GRI 2(a) is whether or not the identity of the article to be made from the imported good is fixed or certain at the time of importation. Baxter Healthcare Corp., 22 C.I.T. at 101. Following this directive, the longstanding position of CBP is that the term "essential character" for purposes of GRI 2(a) means the attribute which strongly marks or serves to distinguish what an article is; that which is indispensable to the structure, core or condition of the article; the aggregate of distinctive component parts that establishes the identity of an article as what it is, its very essence. See Headquarters Ruling Letter (HQ) 967975, dated March 24, 2006.
The essential character for purposes of GRI 2(a) is determined on a case-by-case basis based on the nature of a given article. See HQ H013671, dated January 16, 2009. As such, the debate hinges upon whether the subject merchandise has the essential character of a finished bed linen of heading 6302, HTSUS. If the merchandise does not have the essential character of a finished bed linen, then it may be classified as an “other made up” article under heading 6307, HTSUS.
In Medline Industries v. U.S., 62 F. 3d 1407, 1409-1410 (Fed. Cir. 1995), the Court of Appeals for the Federal Circuit (CAFC) discussed the meaning of the tariff term “bed linen.” The CAFC defined bed linen as “linen or cotton articles for a bed; esp. sheets and pillow cases.” Id. at 1409 citing Webster’s Third New International Dictionary 196 (1981). The CAFC also cited to EN 63.02, which lists “sheets, pillowcases, bolster cases, eiderdown cases and mattress covers” as examples of bed linens. The CAFC stressed that a bed linen is not limited to an article found on all beds; rather a bed linen is a linen, cotton or other fabric article for a bed. Id. at 1410.
While the ENs to heading 63.02 do not mention duvet covers, the examples do include eiderdown cases. An eiderdown is “1. the soft, fine breast feathers, or down, of the eider duck, used as a stuffing for quilts, pillows, etc. [or] 2. a bed quilt stuffed with such feathers.” Webster’s New World Dictionary Third College Edition 434 (1988). A duvet is “a style of comforter, often filled with down, having a slipcover and used in place of a top sheet and blankets.” Id. at 423. An eiderdown is a quilt stuffed with down, and a duvet is a comforter often stuffed with down. Therefore, a duvet cover is very similar to an eiderdown case of heading 6302, HTSUS.
A duvet cover falls squarely within the definition of a bed linen because it is an article of fabric for a bed. Furthermore, it is very similar to eiderdown cases which are listed as an example of bed linens in EN 63.02. Finally, CBP has consistently classified duvet covers as a type of bed linen under heading 6302, HTSUS. See, e.g. New York Ruling Letter (NY) N070728, dated August 27, 2009, NY N058473, dated May 14, 2009 and NY N032135, dated July 11, 2008.
In NY K83054, CBP maintained that the subject merchandise was classifiable as a bed linen by application of GRI 2(a). GRI 2(a) allows for the classification of unfinished goods to be classified as finished goods. As noted above, a duvet cover is designed to encase a comforter. The duvet cover has one finished side which can be opened and closed by the consumer. Since the fourth side of the subject merchandise was completely unfinished, it did not have the essential character of a duvet cover and cannot be classified as a bed linen in heading 6302, HTSUS, by application of GRI 2(a).
Legal Note 7(e) to Section XI (which includes Chapter 63) defines “made up”, inter alia, as “assembled by sewing …” Since the subject merchandise is assembled by sewing and has one unfinished edge, Legal Note 7(e) describes the subject merchandise’s condition. Heading 6307, HTSUS, covers “other made up articles.” Under GRI 1, the subject merchandise is classifiable as a made up article of heading 6307, HTSUS. CBP has consistently classified articles similar to the subject merchandise as other made up articles of heading 6307, HTSUS. See, e.g. NY G84989, dated December 20, 2000 and NY D81406, dated August 26, 1998.
Based on the foregoing, we conclude that the subject merchandise is classifiable by application of GRI 1 (Legal Note 7(e) to Section XI) under subheading 6307.90.98, HTSUS, which provides in pertinent part for “Other made up articles, including dress patterns: other: other: other…”
HOLDING:
By application of GRI 1 and Note 7(e) to Section XI, the subject merchandise is classified under subheading 6307.90.98, HTSUS, as “Other made up articles, including dress patterns: Other: Other: Other.” The general, column one rate of duty is 7 percent ad valorem.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at www.usitc.gov/tata/hts/.
EFFECT ON OTHER RULINGS:
NY K83054, dated March 5, 2004, is REVOKED.
In accordance with 19 U.S.C. § 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division