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HQ 953064


February 25, 1993

CLA-2 CO:R:C:T 953064 NLP

CATEGORY: CLASSIFICATION

TARIFF NO.: 9404.90.8010

Mr. Lawrence A. Doyle
Franco Manufacturing Co., Inc.
555 Prospect Street
Metuchen, NJ 08840-2293

RE: Quilt and pillow sham ensemble; heading 6304; heading 9404; Explanatory Notes to headings 6403 and 9404; GRI 3(b); EN (VIII) to GRI 3(b); EN (X) to GRI 3(b); set; essential character; GRI 6; HRLs 084873 and 951902; textile items in a set are subject to textile category numbers as if they were separately classified; Federal Register, Vol. 54, No. 163, August 24, 1989, p. 35223

Dear Mr. Doyle:

This is in response to your letter dated November 9, 1992, in which you requested the tariff classification for a quilt and sham ensemble under the Harmonized Tariff Schedule of the United States (HTSUS). A sample was submitted for our examination.

FACTS:

The submitted sample is a quilt and sham ensemble. Both are made of 100 percent cotton woven fabric with a polyester filler. The quilt is entirely made of flannel fabric and measures approximately 79 inches by 81 inches. The edge is capped with a strip of pink woven fabric. The top and bottom portions are printed with white and pink strips, Walt Disney's "Minnie Mouse" and hearts.

The sham is oval shaped and measures approximately 20-1/2 inches by 29 inches exclusive of a 4 inch decorative ruffle. The front portion is made of flannel fabric printed with white and pink stripes, Walt Disney's "Minnie Mouse" and hearts. The back portion is made of woven fabric and has an overlaid slit opening to accommodate the insertion of a pillow. Both articles are packaged together in a clear plastic carry bag that has a zipper closure.

ISSUE:

What is the tariff classification of the quilt and sham ensemble under the HTSUS?

LAW AND ANALYSIS:

The classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification shall be determined according to the terms of the headings 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 GRI's may be applied, taken in order. GRI 3 states that:

When, by application of Rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be affected as follows:

(b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.

Harmonized Commodity Description and Coding System Explanatory Note (X) (hereinafter referred to as EN) to GRI 3(b) states that the term "goods put in sets for retail sale" means goods which:

(a) consist of at least two different articles which are, prima facie, classifiable in different headings;

(b) consist of products or articles put up together to meet a particular need or carry out a specific activity;

(c) are put up in a manner suitable for sale directly to users without repacking.

GRI 6 states provides that:

For legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above rules, [GRI's 1- 5] on the understanding that only subheadings at the same level are comparable....

GRI 6 thus incorporates GRI 1 through 5 in classifying goods at the subheading level. Since GRI 6 uses the phrase "for legal purposes" the preceding GRIs are to be applied at the level necessary for the final legal classification of the goods for tariff purposes. Thus, in order to be classifiable as a set, the components must be classifiable in at least two different headings or subheadings.

Heading 9404, HTSUS, provides for "[m]attress supports; articles of bedding and similar furnishing (for example, mattresses, quilts, eiderdowns, cushions, pouffes and pillows) fitted with springs or stuffed or internally fitted with any material or of cellular rubber or plastics, whether or not covered." The subject quilt is classified in this heading. Specifically, it is classified in subheading 9404.90.8010, HTSUS, which provides for "[m]attress supports; articles of bedding and similar furnishing...[o]ther: [o]ther: of cotton, not containing any embroidery, lace, braid, edging, trimming, piping exceeding 6.35 mm or applique work."

Heading 6304, HTSUS, provides for "[o]ther furnishing articles, excluding those of heading 9404." According to the ENs to heading 6304, this heading covers "furnishing articles of textile materials, other than those of the preceding headings or of heading 94.04, for use in the home..." Furthermore, the EN states that heading 6304, HTSUS, does not include bed coverings of heading 9404, HTSUS. The ENs to heading 9404 state that this heading covers the following articles:

(B) Articles of bedding and similar furnishing which are sprung or stuffed or internally fitted with any material (cotton, wool, horsehair, down, synthetic fibres, etc.), or are of cellular rubber or plastics (whether or not covered with woven fabric, plastics, etc.).

The submitted pillow sham contains an internal layer of polyester filler. It is an article of bedding that would be considered internally fitted with fiberfill. Therefore, according to the ENs, the submitted pillow sham is classifiable in heading 9404, HTSUS. Specifically, it is classified in subheading 9404.90.9050, HTSUS, which provides for "[m]attress supports; articles of bedding and similar furnishing...fitted with springs or stuffed or internally fitted with any material or of cellular rubber or plastics, whether or not covered: [o]ther: [o]ther: [o]ther: [o]f cotton." See, Headquarters Ruling Letter

(HRL) 084873 dated July 19, 1990, wherein a pillow sham containing an internal layer of 100 percent polyester fiberfill was classified in subheading 9404.90.9040, HTSUS.

With respect to the instant merchandise, at the heading level, we do not have "goods put up in sets for retail sale" since the quilt and sham are both classifiable in heading 9404, HTSUS. However, the instant articles are classifiable under two different subheadings within the same heading, 9404.90.80, HTSUS and 9404.90.90, HTSUS. They meet a particular need in furnishing a bed and are sold as a set for that purpose. These articles are packaged together in a clear plastic bag and are, therefore, put up in a manner suitable for sale directly to users without repacking. As all three requirements for classification as a set have been met, the quilt and sham ensemble qualify as a set pursuant to GRI 3(b) by virtue of GRI 6.

We must next determine the essential character of the quilt and sham set in accordance with GRI 3(b). EN (VIII) to GRI 3(b) states that:

The factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.

The quilt is the article that gives this merchandise its essential character. By bulk, weight and cost, the quilt makes up the greatest portion of this merchandise. Therefore, the set is classified in heading 9404, HTSUS. Specifically, the set is classified in subheading 9404.90.8010, HTSUS.

HOLDING:

The quilt and sham ensemble is classifiable as a set with its essential character represented by the quilt. Therefore, the set is classified in subheading 9404.90.8010, HTSUS, which provides for "[m]attress supports; articles of bedding and similar furnishing (for example, mattresses, quilts, eiderdowns, cushions, pouffes and pillows) fitted with springs or stuffed or internally fitted with any material or of cellular rubber or plastics, whether or not covered: [o]ther: [o]ther: [o]f cotton, not containing any embroidery, lace, braid, edging, trimming, piping exceeding 6.35 mm or applique work: [q]uilts, eiderdowns, comforters and similar articles." The rate of duty is 5 percent ad valorem.

All applicable visa and quota requirements apply for textile articles which are classified as parts of a set. This rule applies to all items which, if imported separately, would have required a visa and the reporting of quota. Therefore, classification of the quilt and sham ensemble as a set, when imported as such, does not effect the visa and quota requirements applicable to each separately. Thus, these goods are subject to textile category numbers as if separately classified. The pillow sham, if classified separately, would be classifiable under subheading 9404.90.9050, HTSUS, and would be subject to textile category 369. The applicable textile quota category for the quilt is 362. See, HRL 951902, dated, August 28, 1992, wherein a kitchen towel and a dishcloth were classified as a set and each article was subject to textile category numbers as if separately classified. See also, Federal Register, Vol. 54, No. 163. August 24, 1989, p. 35223.

The designated textile and apparel categories 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 the importer 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.

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
Commercial Rulings Division

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