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HQ 965227




February 7, 2002

CLA-2 RR:CR:TE 965227 BAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 6304.92.0000

Mr. Mohammad Tariq
Tab International USA, Inc.
Empire State Building
350 Fifth Avenue
Suite 1526
New York, New York 10118

RE: Revocation NY C81111, November 13, 1997; Classification of a futon cover

Dear Mr. Tariq:

This is in reference to New York Ruling Letter (NY) C81111 issued to you on November 13, 1997, in response to your letter of October 28, 1997 to the Director, Customs National Commodity Specialist Division in New York, on behalf of Tab International USA requesting a ruling on the classification under the Harmonized Tariff Schedule of the United States Annnotated (HTSUSA) of a futon cover.

In NY C81111, a futon mattress cover from Pakistan was classified in subheading 6302.31.9050, HTSUSA, which provides for bed linen, table linen, toilet linen and kitchen linen: other bed linen: of cotton: other: not nappedother. We have now had occasion to review that decision and have found it to be in error.

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 revocation of NY C81111, 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.

FACTS:

The merchandise under consideration is a futon mattress cover also referred to as a futon shell. The cover is made from 55 percent cotton and 45 percent polyester woven fabric. The cover measures approximately 60 x 82 inches and encloses a 6 inch thick futon mattress. Three edges of the cover are sewn and the fourth has a zipper closure.

ISSUE:

Whether the futon cover is 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 cover is 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 an other furnishing article.

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. 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 084323, 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).

In Bauerhin Technologies Limited Partnership v. United States, 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, futon covers of the type described in NY C81111 are generally not sold as parts of the futons with which they are used. The futon covers are sold separate from the futon cushions and may be used with various futons. While the canopy was designed to fit a particular car seat, the futon covers could be used with many futons. Thus, we do not find that the Bauerhin rationale extends to the instant merchandise.

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 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.

A mattress cover is generally used to protect a mattress from dirt and add comfort for the sleeper. The instant futon cover may incidentally protect the futon cushion from dirt and provide additional comfort for the sleeper, yet it is significantly distinguishable from a traditional mattress cover which serves such a purpose. While the instant futon cover may be covered by another cover, many consumers would use it as part of their décor without additional covering. In contrast, a typical mattress cover is white and made of a relatively thin material; it is generally not meant to be used for a decorative purpose or to be seen by houseguests. Accordingly, the instant futon cover is not ejusdem 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 futon cover 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 cover is not “stuffed or filled,” it is precluded from classification in 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. In addition, the instant futon cover may be removed for laundering or in accordance with a change in décor. 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 polyester 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 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 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, you 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

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