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HQ 963484




April 20, 2001

CLA-2 RR:CR:TE 963484 ASM

CATEGORY: CLASSIFICATION

TARIFF NO.: 6304.91.0040

Mr. Robert T. Stack, Esq.
Tompkins & Davidson, LLP
One Astor Plaza
1515 Broadway
New York, NY 10036-8901

RE: Request for Binding Ruling: Classification of finished zipper covers and pillow shell

Dear Mr. Stack:

This is in response to your letter, dated September 30, 1999, requesting a binding ruling for the classification of two unfilled cushion covers and interior shells under the Harmonized Tariff Schedule of the United States Annotated. Samples have been submitted to this office for examination.

FACTS:

The submitted samples consist of two finished cushion covers and two unfinished removable interior shells. The finished covers measure 17 inches square and 19 inches square. These covers have finished closed seams on three sides and a finished zippered opening on the fourth. The covers are constructed of woven fabric that the importer has identified as “velvet” which will be made from either 100 percent cotton or 100 percent polyester. The shells have a 6 inch unfinished opening and are sized to fit inside the finished cushion covers. The shells will be made from a 70 percent polyester and 30 percent cotton blend. After importation the shells will be stuffed with a polyester filling and sewn closed.

ISSUE:

What is the proper classification for the merchandise?

LAW AND ANALYSIS:

Classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is made in accordance with the General Rules of Interpretation (GRI). 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 heading and legal notes do not otherwise require, the remaining GRI may then be applied. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI. The EN, although not dispositive, are used to determine the proper interpretation of the HTSUSA by providing a commentary on the scope of each heading of the HTSUSA. See, T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

It is our understanding that the subject merchandise, the unfinished shell and finished outer cover, are designed to be used together and will be imported and sold together. However, we do not view these articles as classifiable under a GRI 2(a) analysis because in order for them to be classified as one unit, the “unfinished” pillow shell and cover set must have the essential character of the finished article. The EN to GRI 2(a) states: “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.”

Heading 9404, HTSUSA, provides for “Mattress 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.” In the instant case, the unstuffed pillow cover and unfinished shell do not meet the description of the heading for a pillow or cushion. Clearly, the completed stuffed cushion would provide the essential character to the finished goods in this instance and not the empty shell or cover. In other words, without the stuffing, which creates a cushion or pillow, the goods do not have the essential character of the complete or finished article. Customs has classified finished stuffed pillow/cushion and cover sets under subheading 9404.90, HTSUSA, because they are specifically provided for under that subheading as “Pillows, cushions and similar furnishings”. See, Headquarters Ruling (HQ) 960854, dated April 22, 1998, in which it was stated that “The pillow comprises the essential character of the pillow cover and pillow. It provides the bulk, the weight and the form to the item.” Thus, a pillow cover and unfinished shell do not have the essential character of bedding fitted with springs or internally stuffed or fitted with any material.

In the subject case, a GRI 3 analysis is inappropriate because these items are not a retail set put-up in a manner suitable for sale directly to users without repackaging; nor are they composite goods because they do not form a completed whole. The EN (IX), for GRI 3(b) provides, in relevant part, that a composite of two separable articles must together form a whole which would not normally be sold in separate parts. In this instance, the finished cover can be characterized as having a “separable component”, i.e., the unfinished shell. However, unlike the finished pillow cover in HQ 960584, which was specially designed to fit a neck pillow insert featuring a neck roll section, the subject covers are designed in a standard square shape and size (17 inches and 19 inches square). As such, they could be sold separately because they are completely finished and there is ready marketability for such articles.

In view of the foregoing, the unfinished shell and finished cover must be classified separately pursuant to a GRI 1 analysis. On this point, Headquarters Ruling (HQ) 953003, dated February 24, 1993, and HQ 953004, dated February 24, 1993, are relevant because both rulings specifically address what features support the classification of an item as a “pillow shell” in subheading 6307, HTSUSA, or as a “cushion cover” classifiable in subheading 6304, HTSUSA.

HQ 953003 and HQ 953004, stated that a “pillow shell” is unstuffed at the time of importation and has an unfinished opening in the edge seam. This is identical to the subject merchandise which consists of an unfinished shell that has closed seams on three sides with an unfinished opening on the fourth side. Customs has consistently held that “pillow shells”, identical to the unfinished shells which are the subject of this ruling, are classifiable in Heading 6307, HTSUSA. See HQ 084046, dated May 11, 1989; HQ 084718, dated July 31; 1989; HQ 952527, dated December 11, 1992; and HQ 952492, dated January 29, 1993.

In addition, HQ 953003 and HQ 953004 held that a “cushion cover” is classifiable under heading 6304, HTSUSA, because it is distinctly different from the “pillow shell” in that it has finished seams on all sides and a zipper. Heading 6304 covers other furnishing articles, excluding those of heading 9404. By these terms, it covers bedding articles that are not classifiable in heading 9404. These rulings cited the EN to 6304 in support of this classification because “cushion covers” are among the articles specifically enumerated as classifiable in heading 6304, HTSUSA. See also HQ 954196, dated September 15, 1993, which classified a “cushion cover” in heading 6304, HTSUSA, because it featured a zipper closure and was thus distinguishable from a “pillow shell”. The finished cover which is now in issue also has seams on all four sides and a zippered closure on one side and Customs has consistently ruled that such finished pillow or cushion “covers” are classifiable in heading 6304, HTSUSA. See HQ 964490, dated October 19, 2000; HQ 088340, dated January 4, 1990: and HQ 956121, dated June 22, 1994.

HOLDING:

The subject merchandise is classified separately as follows:

Unfinished shells of cotton are properly classifiable under subheading 6307.90.8945, HTSUSA, which provides for “Other made up articles, including dress patterns: Other: Other: Surgical towels; cotton towels of pile or tufted construction; pillow shells, of cotton; shells for quilts, eiderdowns, comforters and similar articles of cotton, Pillow shells, of cotton.” The general column one duty rate is 7 percent ad valorem. The textile category is 369. Unfinished shells of polyester are properly classifiable under subheading 6307.90.9989, HTSUSA, which provides for “Other made up articles, including dress patterns: Other: Other, Other: Other.” The general column one duty rate is 7 percent ad valorem. Finished zippered covers of cotton are properly classifiable under subheading 6304.92.0000, HTSUSA, which provides for “Other furnishing articles, excluding those of heading 9404: Other: Not knitted or crocheted, of cotton.” The general column one duty rate is 6.6 percent ad valorem. The textile category is 369. Finished zippered covers of a 70 percent polyester/30 percent cotton blend, are properly classifiable under subheading 6304.93.0000, HTSUSA, which provides for “Other furnishing articles, excluding those of heading 9404: Other: Not knitted or crocheted, of synthetic fibers.” The general column one duty rate is 9.7 percent ad valorem. The textile category is 666.

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 importation of this merchandise to determine the current status of any import restraints or requirements.

Sincerely,

John Durant, Director

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