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HQ 965149




February 14, 2002

CLA-2 RR:CR:TE 965149 BAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 6307.90.9889

Ms. Leigh Smith
US JHI Corporation
8612 Fairway Place
Middleton, Wisconsin 53562

RE: Modification of NY E89383, November 23, 1999; Classification of bumper pad and soft padded headboard

Dear Ms. Smith:

This is in reference to New York Ruling Letter (NY) E89383 issued to you on November 23, 1999, in response to your letter of October 27, 1999 to the Director, Customs National Commodity Specialist Division in New York, on behalf of US JHI Corporation, requesting a ruling on the classification under the Harmonized Tariff Schedule of the United States Annnotated (HTSUSA) of a bumper pad, comforter, soft headboard, fitted sheet and bed skirt.

Pursuant to section 625(c), Tariff Act of 1930 (19 U.S. C. 1625(c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed modification of NY E89383, as described below, was published in the Customs Bulletin, Volume 35, Number 52, on December 26, 2001. The Customs Service received no comments during the notice and comment period that closed on January 25, 2002.

In NY E89383, dated November 23, 1999, a five piece bedding set imported packed for retail sale was classified in subheading 9404.90.8522, HTSUS, which provides for mattress 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. Appropriate classifications were provided for each item in the set should it be imported separately. The bumper pad and soft headboard were classified in subheading 9403.90.8080, HTSUSA, which provides for other furniture and parts thereof. We have now had occasion to review that decision and found it to be in error insofar as the classification of the crib bumper and padded headboard is concerned.

FACTS:

The merchandise under consideration consists of a bumper pad and a soft headboard for a crib.

One side of the bumper pad (KT948 BP) is made from 100 percent cotton woven fabric. This “farm checked” fabric is printed with a check pattern that incorporates sheep and clover in the design. The reverse side is made from 65 percent polyester and 35 percent cotton woven fabric. This side is solid yellow in color. It features tie strings used to attach the pad to the crib. It also has piping and a ruffle.

The soft headboard (KT948S) is dome shaped and has tie strings used to attach the item to the headboard of a crib. One side is made from the “farm checked” 100 percent cotton woven fabric and the other side from a 65 percent polyester and 35 percent cotton woven fabric. The top and side edges have a sewn in ruffle and piping. The front panel contains a sheep and clover embroidered and appliqued design.

The bumper pad and soft headboard were classified in subheading 9403.90.8080, HTSUSA, which provides for other furniture and parts thereof. This ruling letter only modifies NY E89383 insofar as it concerns the classifications of the bumper pad and soft headboard when imported separately.

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 textile 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.” Note 4(A) of the Chapter Notes to Chapter 94 defines furniture as:

Any “movable” articles (not included under other more specific headings of the Nomenclature), which have the essential characteristic that they are constructed for placing on the floor or ground, and which are used, mainly with a utilitarian purpose to equip private dwellings, hotels, theatres, cinemas, offices, churches, schools, cafes, restaurants, laboratories, hospitals, dentists' surgeries, etc. or ships, aircraft, railway coaches, motor vehicles, caravan-trailers or similar means of transport. (It should be noted that, for the purposes of this Chapter, articles are considered to be “movable” furniture even if they are designed for bolting, etc. to the floor, e.g. chairs for use on ships). Similar articles (seats, chairs, etc.) for use in gardens, squares, promenades, etc. are also included in this category.

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.

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 a “part” of the child safety seat for classification purposes. The Court held that because the canopy was dedicated for use with the car seat it was properly considered a “part” under the HTSUSA and therefore classifiable in subheading 9403.90.8080, HTSUSA, which provides for other furniture and parts thereof: parts; other: other, other.

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 were imported separately from the seats with which they were to be used, they were sold as parts of the seats to which they were to be 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 as part of a five piece bedding set. [Emphasis added] While the canopy discussed in Bauerhin is designed to fit a particular car seat, the bumper pad and headboard could be used with any crib. Thus the Bauerhin rationale does not extend to the instant merchandise.

This office has followed Bauerhin in select cases where the merchandise either had rigid parts making it similar to the exemplars listed in heading 9403 or where the merchandise was designed, marketed and sold to be attached to a particular piece of furniture or equipment. 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).

Heading 6307, HTSUSA, is a residual provision which provides for other made up articles 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 965008, dated August 27, 2001; 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.

HOLDING:

The bumper pad and soft padded headboard made from 100 percent cotton woven fabric are properly classified in subheading 6307.90.9889, 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.

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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