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HQ 965008




August 28, 2001

CLA-2 RR:CR:TE 965065 BAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 6307.90.9989

Bob Glover
Vice President-Import
L.E. Coppersmith Inc.
2041 Rosecrans Avenue, Third Floor
El Segundo, CA 90245

RE: Classification of a slipcover

Dear Mr. Glover:

This is in reply to your letter, dated April 26, 2001, on behalf of Classic Slipcovers requesting a ruling concerning the classification of a fabric slipcover. You contend that the fabric slipcover is properly classifiable in subheading 9401.90.5000, which provides for parts of seats. You submitted a sample of the slipcover to assist us in our determination.

FACTS:

The merchandise under consideration includes a bumper pad and a soft textile padded headboard which are contained within a five piece bedding set but are to be imported separately. The items have a woven outer shell fabric that is a blend of 50 percent cotton and 50 percent polyester. The padded bumper, which measures approximately 9” x 132” and padded headboard, which measures approximately 181/2 x 29”, are filled with 100% polyester fill and feature printed designs of stuffed animals and alphabet letters.

ISSUE:

Whether the bumper pad and padded headboard are properly classifiable in heading 9403, HTSUSA, as other furniture and parts thereof or under heading 6307, HTSUSA, as other made-up textile articles?

LAW AND ANALYSIS:

Classification under the 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 headings and legal notes do not otherwise require, the remaining GRIs may then be applied.

The crib bumper pad and headboard are potentially classifiable in two HTSUSA headings. One possible heading is 9403, HTSUSA which provides for other furniture and parts thereof. Heading 6307, HTSUSA, which provides for other made up articles, is the other potentially applicable heading for the articles in question.

When interpreting and implementing the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, while neither legally binding nor dispositive, provide a guiding commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. Customs believes the ENs should always be consulted. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

Heading 9403 includes “Other furniture and parts thereof.” The subheadings include inter alia metal, wooden, plastic and bamboo furniture. The ENs to heading 9403 state that the heading covers furniture and parts thereof, not covered by the previous headings. It includes inter alia furniture for general use (e.g. cupboards, show-cases, tables, telephone stands, writing desk, escritoires, book- cases, and other shelved furniture), and also furniture for special uses. Other examples listed include cabinets, bread chests, wardrobes, clothes lockers, card index files, school desks, laboratory benches, drawer cupboards etc.

In the instant case, the crib bumper and padded headboard are not “ejusdem generis” or “of the same kind” of merchandise as the items listed in heading 9403 and/or the furniture and parts referred to in the EN. None of the exemplars are soft or stuffed items like the subject merchandise. The exemplars are predominantly composed of wood, metal or other rigid material. Nor do any of the exemplars serve a protective function as do the crib bumper and padded headboard. Accordingly, the crib bumper pad and padded headboard are not properly classifiable under heading 9403.

You contend that, following the rationale in Bauerhin Technologies Limited Partnership v. U.S., 110 F.3d 774, 1997 U.S. App. LEXIS 6214, (CAFC 1997), the subject merchandise is classifiable in subheading 9403.90.8080, HTSUS which provides for other furniture and parts thereof: parts; other: other, other. In Bauerhin, the Court addressed the issue of whether or not a canopy designed to fit over a child automobile safety seat which was imported separately and sold as part of the seat to which it was attached is a “part” of the child safety seat for classification purposes. Relying on the rationale in Bauerhin, you argue that the bumper pad and headboard are dedicated for use with a crib and are therefore properly considered “parts” under the HTSUSA.

In support of your position you cite that the following Customs rulings: HQ 962186, dated June 1, 1999: HQ 959262, dated May 6, 1997 and HQ 9600933, dated September 30, 1997 and HQ 960934, dated September 30, 1997. The subject merchandise in the instant case, however, is significantly distinguishable from the merchandise in Bauerhin and in the aforementioned rulings. In the rulings cited, the merchandise had rigid parts making the items similar to the exemplars listed in heading 9403. See HQ 959262, May 6, 1997 (“Cozy Crib Tent” given shape by the support of fiberglass rods classified in heading 9403); HQ 960933 and HQ 960934, both dated September 30, 1997 (concerning crib tents with fiberglass rods and metal attachments); HQ 088553, dated November 6, 1991; HQ 087844, dated November 30, 1990 (Cozy Crib tents with frame of fiberglass rods with metal attachments classified in 9403). The crib bumper and padded headboard are distinguishable from the crib tents in that they contain no rigid supports or parts. Nor are the crib bumper and padded headboard dedicated solely for use with a particular crib. See HQ 962186, June 1, 1999 (Mosquito netting designed to fit over a specific “Pack-N-Play” model play pen classified in heading 9403).

Notably, in Bauerhin the canopies that were classified as parts of car seats were specially designed to fit over child automobile safety seats. [Emphasis added]. Although the canopies are imported separately from the seats with which they are to be used, they are sold as parts of the seats to which they are attached. In contrast, the crib bumper and padded headboard in the instant case are not sold as parts of the cribs to which they attach. The bumper and padded headboard are optional items and are sold separately. While the canopy is designed to fit a particular car seat, the bumper pad and headboard could be used with any crib. Thus, we do not the find the argument that the Bauerhin rationale extends to the instant merchandise persuasive.

Heading 6307, HTSUSA, is a residual provision which provides for other made up article of textiles. Section Note 7 (e) of Section XI, which covers textiles and textile, articles states in pertinent part as follows:

7. For the purposes of this Section the expression “made up” means:

Assembled by sewing..

The instant article has been assembled by sewing, therefore it constitutes a made up textile article. The Explanatory Notes state regarding Heading 6307:

This heading covers made up articles of any textile material which are not included more specifically in the heading of Section XI or elsewhere in the Nomenclature.

Since the padded headboard and crib bumper at issue are not covered by any more specific heading they are classifiable in Heading 6307, HTSUSA.

Customs has consistently classified merchandise that is almost identical to the subject merchandise under heading 6307. See HQ 961391, dated April 19, 1998; HQ 959347, dated July 18, 1996; NY G87894, dated March 26, 2001; NY G85992, January 11, 2001; NY 807912, dated May 29, 1995; NY 885602, May 10, 1993; NY 851101, dated April 25, 1990.

We note that in NY E89383, November 23, 1999, a crib bumper pad and soft headboard were classified in heading 9403. Appropriate action is currently being taken to modify that ruling.

HOLDING:

The bumper pad and soft padded headboard with a woven outer shell fabric of 50 percent cotton and 50 percent polyester and a 100% polyester fill are properly classified in subheading 6307.90.9989, HTSUSA which provides for Other made up articles, including dress patterns; Other; Other: Other :Other: Other. The general column one rate of duty is 7 percent ad valorem. There is no textile quota category applicable to this provision.

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 the consignee check, close to the time of shipment, the Status on Current Import Quotas (Restraint Levels), an issuance of the U.S. Customs Service, which is updated weekly and is available at the 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, the consignee should contact the local Customs office prior to importing the merchandise to determine the current applicability of any import restraints or requirements.

Sincerely,

John Durant, Director

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