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HQ 965133




December 7, 2001

CLA-2 RR:CR:TE 965133 BAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 6304.92.0000

Susan Klingbeil
Customs Compliance Manager North America
IKEA
496 W. Germantown Pike
Plymouth Meeting, PA 19462

RE: Classification of a sofa bed (futon) slipcover

Dear Ms. Klingbeil:

This is in reply to your letter, dated May 25, 2001, on behalf of IKEA, requesting a ruling concerning the classification of a futon slipcover. You submitted a sample of the slipcover to assist us in our determination.

FACTS:

The merchandise under consideration is a Garlinge sofa bed (futon) slipcover, article number 70026209. The item is a cover for a futon mattress. The cover is made from a 100 percent cotton woven fabric. It measures approximately 52.5 x 75 inches and is designed to encase up to a 7-inch thick mattress. There is a flapped opening, secured by seven buttons, along one of the long sides. A piping cord has been inserted into the edge seams.

ISSUE:

Whether the slipcovers are properly classifiable in heading 9401, HTSUSA, as parts of seats, 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 covers are potentially classifiable in the following three HTSUSA headings: heading 9401, HTSUSA, as parts of seats, 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 9401

Heading 9401, HTSUSA, includes “Seats (other than those of heading 9402), whether or not convertible into beds, and parts thereof:” The ENs to heading 9401, HTSUSA, state that the heading covers inter alia couches, settees, sofas, ottomans and the like. Concerning parts, the ENs state that the heading also covers identifiable parts of chairs or other seats, such as backs, bottoms and arm-rests (whether or not upholstered with straw or cane, stuffed, or sprung) and spiral springs assembled for seat upholstery.

Backs, bottoms, arm-rests and spiral springs are all components of the seats themselves. The futon cover, in the instant case, is not a component of a chair or seat but rather a decorative addition or an item used to protect the futon mattress. The exemplars listed in the ENs to heading 9401, HTSUSA, are united by the fact that they are essential parts of seats as opposed to serving a primarily decorative or protective function, like the subject merchandise. The futon cover, then, is not “ejusdem generis” or “of the same kind” of merchandise as the exemplars listed in the ENs to heading 9401, HTSUSA. Accordingly, the futon cover is not properly classifiable under heading 9401, as a part of a seat. See HQ 0843232, dated July 20, 1989 (slipcovers for cushions, chairs and other types of furniture imported without the cushions cannot be considered parts of seats under heading 9401, HTSUSA).

Notably, where a sofa slipcover has been cut to size to fit a sofa frame that would be an unfinished product but for the slipcover, this office has classified the merchandise in heading 9401, HTSUSA, as part of a seat. See HQ 960195, dated August 13, 1997. As pointed out in that decision, where a slipcover is placed over a finished sofa, providing protection against wear and tear, the slipcover is not considered to be part of the sofa per se. [Emphasis added]. See HQ 960195, dated August 13, 1997. Accordingly the futon cover which is placed over the futon cushion to provide protection or for decoration would not be considered a part of the futon.

In Bauerhin Technologies Limited Partnership v. U.S., 110 F.3d 774, 1997 U.S. App. LEXIS 6214, (CAFC 1997), 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 was “part” of the child safety seat for classification purposes. The Bauerhin Court reasoned that because the carseat canopy was dedicated for use with a carseat, it was properly considered a “part” under the HTSUSA.

In Bauerhin, the canopies that were classified as parts of car seats were specially designed to fit over child automobile safety seats. [Emphasis added]. Despite the fact that they were imported separately from the seats with which they were to be used, the canopies were nevertheless packaged and sold together with the seats as a single unit. In contrast, the futon slipcovers in the instant case are not sold as parts of the futons with which they are used. The futon covers are sold separate from the futon cushions as accessory items to be used with various futons. While the canopy was designed to fit a particular car seat, the futon slipcovers could be used with many futons. Thus, we do not find the argument that the Bauerhin rationale extends to the instant merchandise persuasive.

Having precluded classification under heading 9401, 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 or 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.

Considering that futons are dual function furniture items, that is, they are used as both couches and beds, the futon slipcover could be considered to be a mattress cover. A mattress cover, however, is generally used to protect a mattress from spilled liquids and/or to create a barrier between the sleeper and the bedding to prevent the penetration of allergens into the mattress. See HQ 960524, dated October 27, 1997. While the instant slipcover may incidentally protect the futon mattress from spilled liquids and create a barrier between the sleeper and the bedding, it is significantly distinguishable from a traditional mattress cover which serves such a purpose. The instant slipcover is made of a very heavy fabric, contains large buttons and piping and is sold in light blue. A typical mattress cover is white and made of a much thinner material. It is generally not meant to be used for a decorative purpose. A visual examination of the subject merchandise reveals that it is clearly meant to be decorative, like a slipcover for a sofa, rather than used as a means to protect a mattress from spills or the penetration of allergens. Accordingly, the instant futon slipcover is not esjudem generis with the exemplars listed in the ENs to heading 6302, HTSUSA.

HEADING 6304

Having precluded classification in Heading 6302, HTSUSA, we must now examine whether the slipcover is properly classified in Heading 6304, HTSUSA. Heading 6304, HTSUSA, provides for other furnishing articles, excluding those of heading 9404, HTSUSA. Heading 9404, HTSUSA, provides for mattress supports; articles of bedding and similar furnishing. The ENs to heading 9404, HTSUSA state that the heading specifically covers articles of bedding and similar furnishing which are “sprung or stuffed or internally fitted with any material.” As this futon slipcover is not “stuffed or filled,” it is precluded from classification in heading 9404, HTSUSA.

The ENs to heading 6304 provide that the heading covers furnishing articles of textile materials which include textile furnishings for . . . (but not including bed coverings of heading 9404), cushion covers and loose covers for furniture. The futon slipcover 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. In addition, the instant slipcover may be removed for laundering or in accordance with a change in décor. The instant slipcover, moreover, conforms to the shape of the futon cushion as most cushion covers conform to the shape of the cushion. 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 HRL 951528, dated August 14, 1992 (cushion cover for an infant carseat is classified in heading 6304); HRL 085885, dated January 23, 1990 (infant car seat covers are more specifically provided for as “like” furniture slipcovers than as parts of cushions and therefore properly classified in heading 6304, HTSUSA).

Having established that the proper heading for the futon mattress cover is heading 6304 HTSUSA, classification must then be made at the appropriate subheading level. The futon slipcover is properly classified under subheading 6304.92.0000, HTSUSA which provides for “Other furnishing articles, excluding those of heading 9404: Other: Not knitted or crocheted, of cotton.”

We note that this holding is inconsistent with several rulings classifying futon mattress covers including decorative printed covers as bed linen. See NY G87021, dated February 21, 2001; NY C81111, dated November 13, 1997; NY 805667, dated January 11, 1995; and NY 804095, dated November 23, 1994. Appropriate steps are currently being taken to modify and revoke those rulings as necessary.

HOLDING:

The futon mattress slipcover composed of 100% cotton 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 your client 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, your client 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
Commercial Rulings Division


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