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HQ 966147




March 26, 2003

CLA-2 RR:CR:TE 966147 RH

CATEGORY: CLASSIFICATION

TARIFF NOS.: 6304.92.0000; 9404.90.1000

Susan Kohn Ross, Esq.
Rodriguez O’Donnell Ross
Fuerst Gonzalez & Williams
5777 W. Century Blvd.
Suite 520
Los Angeles, CA 90045-5659

RE: Request for Reconsideration of HQ 964954, dated April 18, 2002; Classification of a BedLounge®; heading 9404; heading 6302; heading 6304; HQ 964954 incorporated by reference.

Dear Ms. Ross:

This is in reply to your letter of December 31, 2002, requesting reconsideration of Headquarters Ruling Letter (HQ) 964954, dated April 18, 2002. Customs issued that ruling to you, on behalf of your client, Cequal Products, Inc., concerning the classification of a stuffed BedLounge® and its cover.

FACTS:

In HQ 964954, Customs classified the cover as “other furnishing articles” under subheading 6304.92.0000, HTSUS, affirming New York Ruling Letter (NY) G85738, dated February 9, 2002. Additionally, in HQ 964954 we classified the BedLounge® under subheading 9404.90.1000, as “other pillows, cushions and similar furnishings.”

You do not contest the classification of the BedLounge® under subheading 9404.90.1000, HTSUS, but you disagree with Customs classification of the BedLounge® cover under subheading 6304.92,0000, HTSUS. You maintain that the cover is properly classified under subheading 6302.31.9030, HTSUS, as a bolster cover.

A description of the BedLounge® cover in HQ 964954 reads as follows:

The merchandise under consideration is a cushion cover for an item referred to as “The BedLounge”. The article is essentially an updated, enlarged and improved bed rest that falls just short of being considered furniture. The “BedLounge” cover is comprised of a headrest pillow cover and a backrest cover. The backrest is sewn along the sides with apertures allowing access to the posture pillow. The armrest portion has side pockets and a tie string on each side. The pockets are used to hold such items as a television remote, reading glasses, pens, pencils, calculators, etc. The ties allow you to fold the arms so that you can store the item when not in use. The headrest pillow cover is sewn on all sides except one, which has a zipper for enclosing the filling cushion, which extends the full length of the headrest. The headrest has one large button on each side, to match the buttons on the armrests. The backrest portion of the pillow is sewn on all sides with a zipper running along the bottom side of it and three quarters of the way down the underside of each armrest. The cover comes in natural, hunter green, navy blue, burgundy, blue and white stripe, denim, blue on blue stripe, and black. The covers are made from 100 percent cotton woven fabric. The dimensions for the backrest portion of the cover are 27” by 30” and for the headrest portion are 20” by 16”.

ISSUE:

Is the BedLounge® cover classifiable under subheading 6302.31.9030, HTSUS, as a bolster cover, or under subheading 6304.92.0000, HTSUS, as an other furnishing article?

LAW AND ANALYSIS:

We incorporate the LAW AND ANAYLSIS portion of HQ 964954 into this ruling by reference.

Initially, we note that you do not contest the classification of the BedLounge® under subheading 9404.90.1000, HTSUS, but you argue that the principle use of the item is on a bed. In that regard, you further state that when an item classified under subheading 9404.90, HTSUS, is principally used on the bed, covers for that item, when imported alone, are classified as bed linen and more specifically as bolster covers in this case, under subheading 6302.31.9030, HTSUS.

Additional U.S. Rule of Interpretation 1(a), HTSUS, reads:

In the absence of special language or context which otherwise requires –
a tariff classification controlled by use (other than actual use) is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principle use;

Although the introduction of the HTSUS changed the concept of use from chief use to principal use, it is still informative to see how courts interpreted the former statute since the wording regarding class or kind is nearly identical. In United States v. Colibri Lighters (USA), Inc., 47 CCPA 106, CAD 739 (1960), discussing the concept of chief use, the Appeals Court stated that in addition to the characteristics of the merchandise itself, classification should be based on the chief use of the articles of that class generally and not on the basis to which the individual articles should be put. In Group Italglass U.S.A., Inc. v. United States 17 CIT 1177, 839 F. Supp. 866 (1993), the Court found that it is the principle use of the class or kind or goods to which the imports belong at or immediately prior to the date of importation and not the principal use of the specific imports that is controlling. Moreover, in Primal Lite, Inc. v. United States, 182 F.3d 1362 (Fed Ct. Apps. 1999), the Court stated that principle use under ARI 1(a) limits the “class or kind” language to those goods that are “commercially fungible” with the imported goods.

Notwithstanding the BedLounge® trademark and the patent description of the article as an “ergonomic bed lounge”, we agree with the findings in HQ 964954 that the BedLounge® is not a bolster but is of the same class or kind of merchandise known as a “husband chair” – a cushion with armrests that may be used on a bed, floor or propped against furniture to give support to one’s back. As stated in HQ 964954, Cequal Product Inc.’s marketing of the BedLounge® emphasizes that it is a “complete revolution in seating technologyoffers[a] highly portable way to have extraordinary comfort and supportwherever you sit!” The marketing brochure features several photos of individuals using the BedLounge® on the floor in various rooms in the house.

In our opinion, however, the principle use of the BedLounge® does not effect the classification of the BedLounge® cover. As evidenced by the Explanatory Notes, bed linen of heading 6302, HTSUS, encompasses bed coverings of a protective nature such as sheets, pillowcases, bolster cases, eiderdown cases and mattress covers, whereas heading 6304, HTSUS, covers textile furnishings generally used as an accessory or decorative item such as bed spreads, cushion covers and loose covers for furniture.

For example, pillowcases and covers classifiable as bed linen under heading 6302, HTSUS, are principally used to cover and protect the inner pillow and are usually fitted to typical (standard, queen or king) pillow sizes. See HQ 964199, dated October 19, 2000. Moreover, Customs has held that pillow covers considered to be bed linen of heading 6302, HTSUS, include those with a zipper closure at one end used to protect the pillow and cover when the ticking is damaged, preventing the stuffing from falling out. HQ 088548, dated May 22, 1991. See also NY 814057, dated September 13, 1995; NY D86637, dated January 22, 1999.

In addition to the rulings cited in HQ 964954 concerning cushion covers, slipcovers and car seat covers, Customs has consistently classified pillow shams and cushion covers placed on a pillow or cushion for a decorative accent under heading 6304, HTSUS. In 088340, dated January 4, 2000, we held that throw pillow covers and pillow shams of a kind used on decorative pillows placed on beds and furniture were classified under subheading 6304.92.0000, HTSUS. See also NY F86047, dated May 4, 2000 (decorative pillow and bolster covers classified under heading 6304); HQ 087062, dated August 20, 1990 (pillow shams classifiable under heading 6304); NY H845422, dated August 22, 2001 (embroidered pillow cover with small mirrors set into the embroidery classified under heading 6304, HTSUS).

The cover in question is similar to a cushion cover of heading 6304, HTSUS. It functions to protect and decorate the BedLounge® and it covers and conforms to its shape. It has decorative buttons and pockets to hold various items. It is not akin to a pillowcase or cover of heading 6302, HTSUS, known as bed linen.

HOLDING:

HQ 964954 is AFFIRMED. We incorporate the LAW AND ANAYLSIS portion of HQ 964954 into this ruling by reference.

The BedLounge® cover is classified in subheading 6304.92.0000, HTSUS, 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 6.4 percent ad valorem.

The BedLounge® is properly classified in subheading 9404.90.1000, HTSUS, which provides for “Mattress suppports; 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, Other: Pillows, cushions and similar furnishings: of cotton.” The general column one rate of duty is 5.4 percent ad valorem.

Sincerely,
Myles B. Harmon, Director
Commercial Rulings Division

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