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HQ 083823


April 7, 1989

CLA-2 CO:R:C:G 083823 CMR 836318

CATEGORY: CLASSIFICATION

TARIFF NO: 6307.90.9030

Mr. Marcos Chang
New Harbor Enterprises, Inc.
Ten Penn Center
Suite #628-632
Philadelphia, Pennsylvania 19103

RE: Classification of a bedrest shell under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA)

Dear Mr. Chang:

This ruling is in response to your letter of January 27, 1989, requesting the classification of a bedrest shell from Thailand. We received a sample with the request.

FACTS:

The submitted sample is a bedrest shell. The shell is made from 65 percent polyester and 35 percent cotton woven fabric. The bedrest is designed as a caricature of a cat. It has ears and arms which have 100 percent polyester fillings. Additionally, an applique face and applique stripes appear on a large front section to represent the cat's face. A ruffle is sewn on the front to represent a skirt. The body and legs are unstuffed.

ISSUE:

Is the submitted bedrest shell classifiable as a toy, furnishing, or other made up article under the HTSUSA?

LAW AND ANALYSIS:

According to the Harmonized Commodity Description and Coding System Explanatory Notes, the official interpretation of the Harmonized System at the international level, Chapter 95 of the HTSUSA "covers toys of all kinds whether designed for the amusement of children or adults." The phrase "designed for the amusement of" is generally understood to indicate that the use of the article will be a factor when classification as a toy is being considered. -2-

Additional U.S. Rule of Interpretation 1(a), HTSUSA, provides that absent language to the contrary:
a tariff classification controlled by use (other than actual use) is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use.

Therefore, in order to be classified as a toy, the bedrest would need to be principally used for amusement. Customs does not believe that that is its principal use.

The bedrest, while perhaps having amusement value to some, is primarily designed to provide body support. Additionally, it may be used as an article of decoration.

Classification in Chapter 94 under subheading 9404.90.2000, HTSUSA, as an article of bedding has been suggested by the importer. Classification under this heading requires that articles of bedding and similar furnishings be fitted with springs or stuffed or internally fitted with a material or cellular rubber or plastics. While the unstuffed bedrest shell may, by virtue of GRI 2(a), be considered an unfinished bedrest, it lacks the stuffing required for inclusion within this heading.

Classification under subheading 6304.93.0000, HTSUSA, which provides for other furnishing articles, has been suggested as an alternative to subheading 9404.90.2000, HTSUSA. However, the unstuffed bedrest shell cannot be classified in this provision as an unfinished bedrest because it would not be classifiable under this heading if it were finished.

Accordingly, the woven polyester/cotton bedrest shell is classifiable as an other made up article under heading 6307, HTSUSA.

HOLDING:

The bedrest shell is properly classifiable under the provision for other made up articles, subheading 6307.90.9030, HTSUSA, dutiable at 7 percent ad valorem. There are currently no textile restraints applicable to this merchandise.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, you 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

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