HQ 0083300 - Application for Further Review of Protest No. 3801-7-001979, dated October 26, 1987, filed by Trans-Border Customs Service, on behalf of Obus Forme Ltd., protesting your decision in the liquidation on July 31, 1987 of entry number 702-0006280, dated May 22, 1987, covering a shipment of backrest products imported from Canada. - United States International Trade Commision Rulings

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HQ 083300

May 17, 1989

CLA-2 CO:R:C:G 083300 LS

CATEGORY: CLASSIFICATION

TARIFF NO.: 727.86, 367.63

District Director of Customs
477 Michigan Ave., Second Floor
Detroit, Michigan 48226

RE: Application for Further Review of Protest No. 3801-7-001979, dated October 26, 1987, filed by Trans-Border Customs Service, on behalf of Obus Forme Ltd., protesting your decision in the liquidation on July 31, 1987 of entry number 702-0006280, dated May 22, 1987, covering a shipment of backrest products imported from Canada.

Dear Sir:

This is our decision on the above-referenced Application for Further Review of Protest, which you forwarded to our office by a memorandum dated April 14, 1988.

FACTS:

The five categories of products which are the subject of this protest are: a low backrest or back support; a high backrest or back support; a seat; a lumbar pad; and a supporting roll cover. According to the literature submitted, the products are designed to provide comforting support to the back, the buttocks, and the neck, depending on the individual item in use, in any chair, auto seat, sofa, bed or wheelchair. The term "Obus" in the trade name, "Obus Forme," is an abbreviation for the phrase "Orthopedic Brace/Upright Support."

The high back and low back supports consist of an impact resistant, molded polycarbonate frame, padded in the front and back with polyurethane foam and covered with an open weave brushed nylon cover. An elastic strap allows it to be secured to the back of a chair or car seat. The detachable lumbar pad is made of urethane foam covered with brushed nylon. The pad can be attached to the back support to provide additional support to the hollow in the back. The seat is also made of a polycarbonate
frame padded with polyurethane foam and covered with nylon. The front section of the seat is removable to adjust to different seat depths. The seat can be used by itself or can be attached to the back support with fasteners similar to VELCRO brand fasteners. The supporting roll cover is made of nylon and is designed to be placed over a cylindrical roll made of polyurethane foam. It can be removed easily for cleaning and includes an elastic strap which holds the supporting roll in the desired position. The supporting roll is designed to provide support to the lower back or the neck.

All of the merchandise, except for the lumbar pads, were entered under item 727.59, TSUSA, which provides for "Furniture, and parts thereof, not specially provided for: Of rubber or plastics: Other: Other." The lumbar pads were entered under item 770.40, TSUSA, which provides for "Expanded, foamed, or sponge rubber or plastics, and articles not specially provided for wholly or almost wholly of such rubber or plastics: Flexible: Of polyurethane." Your office liquidated all the items in the entry under item 770.40, TSUSA.

The protestant claims that the subject merchandise was incorrectly classified in item 770.40, TSUSA, and that the proper classification provision is item 727.59, TSUSA. In support of this claim, the protestant attaches Customs Form 4313, issued by an import specialist in Buffalo, New York, which gives a non- binding classification for the merchandise in item 727.50, TSUSA. We note that item 727.50 does not exist in the TSUSA for 1987.

ISSUE:

Whether the subject backrest products are classifiable in item 770.40, TSUSA or item 727.59, TSUSA?

LAW AND ANALYSIS:

Item 727.59, TSUSA, provides for "Furniture and parts thereof, not specially provided for: of rubber or plastics: Other: Other."

Headnote 1 to Schedule 7, Part 4, Subpart A states in pertinent part:

For the purposes of this subpart, the term "furniture" includes movable articles of utility, designed to be placed on the floor or ground, and used to equip dwellings, offices, restaurants, libraries, schools, churches, hospitals, or other establishments, aircraft, vessels, vehicles, or other means of transport, gardens, patios, parks, or similar
outdoor places, even though such articles are designed to be screwed, bolted, or otherwise fixed in place on the floor or ground; and kitchen cabinets and similar cupboards, seats and beds,. . . ."

Thus, the chairs, seats (including automobile seats), benches, and beds with which the subject items are designed to be used are all considered to be furniture.

We must next consider whether the subject backrest products are parts of furniture, classifiable in item 727.59, TSUSA. The term "part" is a word of art in customs law. Parts Manufacturing Associates, Inc. v. United States, 73 Cust. Ct. 42, 45, C.D. 4552 (1974). The judicial decisions which have defined this term have looked to the "use and function of the controverted article and its relation and contribution to the parent article." Vilem B. Haan v. United States, 67 Cust. Ct. 104, C.D. 4260 (1971). A product whose presence is essential to the completion of the parent article with which it is used is considered a part of that parent article. See American Powerail, Inc. v. United States, 83 Cust. Ct. 128, C.D. 4828 (1979); Headquarters Ruling Letter (HRL) 061978, dated January 23, 1981. Another interpretation of a part was enunciated in Gallagher & Ascher Co. v. United States, 52 CCPA 11, C.A.D. 849 (1964), in which an auxiliary heater, which was dedicated for use in Volkswagen automobiles but was optional equipment, was found to be a part of an automobile because it contributed to the safe and efficient operation of the automobile in frigid temperatures.

Applying these two interpretations of a "part" to the backrests, seat, and lumbar pad, we find that these products are not essential to the completion of the parent articles with which they are used, and do not contribute to the safe and efficient operation of those articles. The chairs, auto seats, sofas, beds, or wheelchairs with which these items are used are complete without the addition of these support items. Further, the subject products do not contribute to the safe and efficient operation of chairs, auto seats, sofas, beds, or wheelchairs. The products merely add to the comfort of the person who uses them in conjunction with a piece of furniture. They are considered to be accessories of furniture, rather than parts of furniture, because they add to the effectiveness of the furniture. See United States v. C.F. Liebert, 59 CCPA 43, C.A.D. 1035 (1971).

The supporting roll cover is not a part of furniture because it is used together with the supporting roll, rather than with furniture. The supporting roll, which is not one of the items at issue, is not considered to be furniture based upon the same reasoning applied to the backrests, seat, and lumbar pad.

In further support of this position, we note the decision of the Court of Customs and Patent Appeals in United States v. Shelford, Inc., 53 CCPA 53, C.A.D. 876 (1966), which held that peel automobile backrests were correctly classified by Customs as articles in part of rattan. The appellate court reversed the Customs Court's finding in Shelford, Inc. v. United States, 54 Cust. Ct. 130, C.D. 2520 (1966) that the backrests were classifiable as furniture in chief value of wood. Each backrest was composed of a sturdy wooden frame with woven material of peel, and was chiefly used to keep the driver cool in hot weather. The court found that the backrests functioned as a secondary, rather than primary, support for the back and that they were not self-supporting. It was determined that the backrests were used in a similar manner as pillows and cushions, and that they were therefore considered, in ordinary terminology, to be furnishings rather than furniture. The court also held that the backrests functioned as accessories to furniture rather than as furniture itself.

Although the Court of Customs and Patent Appeals in United States v. Shelford, Inc., supra, did not address the issue of whether the backrests were classifiable as parts of furniture, it implicitly made this determination by finding that the backrests were not classifiable in the paragraph of the Tariff Act of 1930 which provided for "Furniture,. . .and parts thereof, wholly or in chief value of wood, and not specially provided for."

We also note ORR Ruling 73-0291, dated December 10, 1973, in which an inflatable vinyl plastic backrest was found not to be classifiable as furniture under item 727.48, TSUSA.

The protestant's reliance on Customs Form 4313, issued by an import specialist in Buffalo, New York regarding the subject articles, is not persuasive because the classification given in that form is non-binding.

Having found that the subject items are not classifiable as parts of furniture, we next consider whether they were properly classified by Customs in item 770.40, TSUSA, which provides for "Expanded, foamed, or sponge rubber or plastics, and articles not specially provided for wholly or almost wholly of such rubber or plastics: Flexible: Of polyurethane." General Headnote 9(f)(ii) states that the term "wholly of," when used between the description of an article and a material, means that "the article is, except for negligible or insignificant quantities of some other material or materials, composed completely of the named material." General Headnote 9(f)(iii) states that the term "almost wholly of," means that "the essential character of the
article is imparted by the named material, notwithstanding the fact that significant quantities of some other material or materials may be present."

The back supports, seat, and lumbar pad are not "wholly of" expanded, foamed, or sponge rubber or plastics because they all contain a nylon cover which constitutes a significant quantity of material. In addition, the back supports and seat are composed in part of a polycarbonate frame which is not an expanded, foamed, or sponge rubber or plastic.

Further, the back supports, seat, and lumbar pad are not "almost wholly of" expanded, foamed, or sponge rubber or plastics because it cannot be said that the essential character of these items is imparted by the polyurethane foam. The polycarbonate frame of the back supports and the seat is essential to the function of both products because it provides the firm support which is the distinguishing feature of these products. The "biomechanical mold" of the frame in the back supports and seat is designed to conform to the shape of the back and the buttocks. In addition, the nylon covers of these products serve the following important functions: provide a washable, comfortable surface; absorb perspiration; and prevent the polyurethane foam from sticking to the user. Based upon the significant functions of the polycarbonate frame and the nylon covers, we cannot conclude that the polyurethane foam imparts the essential character of the back supports, seat, and lumbar pad.

The supporting roll cover is clearly not classifiable in item 770.40, TSUSA, as an article wholly or almost wholly of expanded, foamed, or sponge rubber or plastics, because it is made of nylon material and has no expanded, foamed, or sponge rubber or plastics in its composition.

Because the subject items do not meet the criteria of item 770.40, TSUSA, they are not classifiable in that provision. Before determining whether another basket provision is applicable, we consider whether there is an eo nomine provision which covers these products.

Item 727.8610, TSUSA, provides for "pillows, cushions, mattresses, and similar furnishings, all the foregoing, whether or not fitted with covers and with or without electrical heating elements, fitted with springs, stuffed, or both, or of expanded, foamed, or sponge rubber or plastics: Other: Pillows and cushions." The back supports, seat, and lumbar pad are classifiable in this provision because they are considered to be pillows or cushions, and they are all "stuffed" with polyurethane foam. Similar articles which can be used on most chairs or seats, including car seats, have been classified in item 727.8610
as pillows or cushions. See HRL 080873, dated April 21, 1988 (cushion used on most chairs and car seats to provide support for the lower back); HRL 080819, dated February 1, 1988 (pillow usable on any seat back, including automobile seat back, to support the head).

Since the subject articles are not wholly or in chief value of cotton, they are not classifiable in item 727.82, TSUSA. They are therefore classifiable in item 727.86, TSUSA, which provides for "other" pillows, cushions or similar furnishings which meet the criteria of the superior heading.

The supporting roll cover is classifiable in item 367.6380, which provides for "Other furnishings, not ornamented: Of man- made fibers: Other: Other: Other: Other." Headnote 1 to Schedule 3, Part 5, Subpart C, TSUSA, states that "the term 'furnishings' means curtains and drapes, including panels and valances; towels, napkins, tablecloths, mats, scarves, runners, doilies, centerpieces, antimacassars, and furniture slipcovers; and like furnishings; all the foregoing, of textile materials, and not specially provided for." The supporting roll cover is not specially provided for elsewhere and is considered a furnishing within the meaning of Headnote 1 to Schedule 3, Part 5, Subpart C, TSUSA. It serves as a cover for the supporting roll, which is considered to be a pillow for tariff classification purposes. See HRL 059456, dated January 25, 1979; HRL 059630, dated August 9, 1978 (classification of pillow covers as other furnishings in items 365.91 and 365.86, TSUSA, respectively.)

HOLDING:

The backrests, seat and lumbar pad are classifiable in item 727.8610, TSUSA, as pillows, cushions, and similar furnishings. The 1987 rate of duty is 6 percent ad valorem. The supporting roll cover is classifiable in item 367.6380, TSUSA, as other furnishings. The 1987 rate of duty is 8.5 percent ad valorem.

Since the rates of duty under the classifications indicated above are more than the liquidated rate, you are instructed to deny the protest in full. A copy of theis decision should be sent to the protestant along with the Form 19 Notice of Action.

Sincerely,

John Durant, Director
Commercial Rulings Division

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