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HQ 965036




December 7, 2001

CLA-2 RR:CR:TE 965036 BAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 6304.92.0000

John C. Schott
President
Schott International, Inc.
2850 Gilchrist Road
P.O. Box 7152
Akron, Ohio 44306

RE: Classification of an unstuffed futon cushion cover

Dear Mr. Schott:

This is in reply to your letter, dated April 18, 2001, on behalf of Schott International, requesting a ruling concerning the classification of an unstuffed futon mattress cover. You submitted a sample of the futon cover to assist us in our determination.

FACTS:

The merchandise under consideration is an unstuffed futon cushion cover. The cover is made from a 55 percent cotton and 45 percent polyester woven fabric. Three sides of the cover are sewn and the fourth has a zippered opening that extends a few inches down each side. After importation the cover is stuffed with various fillings (plastic foam, cotton or poly/cotton batting, etc.) and zippered closed. The mattress is stitched through all layers (tufted) to hold the components together and prevent shifting.

ISSUE:

Whether the futon cover is properly classifiable in heading 9404, HTSUSA, as an article of bedding and similar furnishing fitted with springs or stuffed or internally fitted with any material; heading 6302, HTSUSA, as bed linen; or heading 6304, HTSUSA, as other furnishing 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 futon cover is potentially classifiable in the following three HTSUSA headings: heading 9404, HTSUSA, as an article or bedding or similar furnishing fitted with springs or stuffed or internally fitted with any material, heading 6302, HTSUSA as bed linen, or heading 6304, HTSUSA, as other furnishing articles.

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 9404

Heading 9404, HTSUSA, includes “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.” The ENs to heading 9404, HTSUSA, state that the heading covers inter alia articles of bedding which are sprung or stuffed or internally fitted with any material (cotton, wool horsehair, down, synthetic fibers, etc.).” Heading 9404, HTSUSA does not provide for parts. As this futon cover is not stuffed or internally fitted with any material, it is precluded from classification in Heading 9404, HTSUSA.

Having precluded classification under heading 9404, the next consideration is to determine under which heading of Chapter 63 the subject merchandise is classifiable. Under Chapter 63, the competing headings for the futon mattress cover are heading 6302, HTSUSA, which provides for inter alia, bed linen and heading 6304, HTSUSA, which provides for other textile furnishing articles, excluding those of heading 9404.

HEADING 6302

Heading 6302, HTSUSA, provides for inter alia, bed linen. The ENs for heading 6302, HTSUSA, state that bed linen includes, e.g. sheets, pillow cases, bolster cases, eiderdown cases and mattress covers.

A mattress cover is generally used to protect a mattress from dirt and add comfort for the sleeper. While the instant futon cover may incidentally protect the futon cushion from dirt and provide added comfort to the sleeper, it is significantly distinguishable from a traditional mattress cover which serves such a purpose. The instant futon cover is made of a much heavier fabric than a typical mattress cover which is generally white and made of a much thinner material. A mattress cover is generally not meant to be used for a decorative purpose or seen in public. While the sample provided is solid black and the importer asserts that it is sewn to the mattress, many consumers would use the futon cover at issue without another cover on top of it. Thus, the futon cover at issue, unlike a traditional mattress cover, could be part of a room’s décor as opposed to functioning primarily to protect the mattress from dirt. Accordingly, the instant futon cover is not ejusdem generis with the exemplars listed in the ENs to heading 6302, HTSUSA.

You claim that you sell the unstuffed futon covers to U.S. companies who stuff the covers and sell the futons to consumers. Your argument suggests that the covers at issue are “shells” for futons. A shell, however, is generally imported in an unfinished condition with one side unsewn. See HQ 952753, January 12, 1993; HQ 953003, dated February 24, 1993; HQ 953004, dated February 24, 1993; HQ 952492, January 29, 1993; HQ 952527, dated December 11, 1992. Once imported, the shell is generally stuffed and then sewn. Unlike a shell, the futon cover at issue is a finished product as imported and therefore is significantly distinguishable from a shell.

HEADING 6304

Having precluded classification in Heading 6302, HTSUSA, we must now examine whether the futon cover is properly classified in Heading 6304, HTSUSA. Heading 6304, HTSUSA, provides for other furnishing articles, excluding those of heading 9404, HTSUSA. The ENs to heading 6304 provide that the heading covers inter alia furnishing articles of textile materials including bedspreads. . . . (but not including bed coverings of heading 9404), cushion covers and loose covers for furniture. The futon cover at issue is similar in function to a cushion cover. That is, it is sewn on three sides with one side open for the insertion of a cushion. The instant futon cover, moreover, conforms to the shape of the futon cushion as most cushion covers conform to the shape of the cushion covered. See HQ 951528, dated August 14, 1992; HQ 084324, dated July 20, 1989. Accordingly, the instant merchandise is ejusdem generis with the exemplars listed in the ENs to heading 6304 and is properly classified in heading 6304, HTSUSA.

This holding is consistent with other Customs rulings where slipcovers have been classified under heading 6304, HTSUSA. See HQ 084323, dated July 20, 1989; NY B84450, dated May 12, 1997. This holding is also consistent with rulings where other covers for seats have been classified under heading 6304. See HQ 951528, dated August 14, 1992 (cushion cover for an infant carseat is classified in heading 6304); HQ 085885, dated January 23, 1990 (infant car seat covers are more specifically provided for as “like” furniture slipcovers than as parts of cushions and are therefore properly classified in heading 6304, HTSUSA).

Having established that the proper heading for the futon cover is heading 6304 HTSUSA, classification must then be made at the appropriate subheading level. Note 2(A) to Section XI of the HTSUSA provides in pertinent part that, “Goods classifiable in Chapters 50 to 55 or in heading No. 5809 or 5902 and of a mixture of two or more textile materials are to be classified as if consisting wholly of that one textile material which predominates by weight over each other single textile material.” Subheading Note 2(A) to Section XI states that “Products of Chapters 56 to 63 containing two or more textile materials are to be regarded as consisting wholly of that textile material which would be selected under note 2 to this section for the classification of a product of Chapters 50 to 55 consisting of the same textile materials.” Accordingly, because the futon cover is composed of 55 percent cotton and 45 percent polyester woven fabric, it is 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.”

HOLDING:

The futon cover composed of 55 percent cotton and 45 percent woven fabric is properly classified in 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 rate of duty is 6.6 percent ad valorem. The textile quota category applicable to this provision is 369.

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 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 updated weekly and is available for inspection at your local Customs office. The Status Report on Current Import Quotas (Restraint Levels) is also available on the Customs Electronic Bulletin Board (CEBB) which can be found on the U.S. Customs Service Website at www.customs.gov.

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 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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