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HQ 968268




August 30, 2006

CLA-2: RR:CTF:TCM 968268 KSH

CATEGORY: CLASSIFICATION

TARIFF NO.: 9404.90.8505

Port Director
Customs and Border Protection
Port of Charlotte
1901 Crossbeam Drive
Charlotte, NC 28217

RE: Application for Further Review of Protest 1512-06-100003

Dear Port Director:

This is in reply to your correspondence forwarding Application for Further Review (AFR) of protest no. 1512-06-100003, filed by UTI United States, Inc., on behalf of P. Kaufman, Inc.

The protest is against Customs and Border Protection’s (CBP) classification and liquidation of three entries of comforter sets under subheading 9404.90.8522 of the Harmonized Tariff Schedule of the United States (HTSUS), which provides for “Matress 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: Other: Other: Other: Quilts, eiderdowns, comforters and similar articles, With outer shell of man-made fibers.” Liquidation of the entries occurred on October 13, 2005, October 20, 2005 and October 27, 2005. Protestant entered the merchandise subject to this protest in subheading 9404.90.8020, HTSUS, which provides for “Matress 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: Other: Other: Of cotton, not containing any embroidery, lace, braid, edging, trimming, piping exceeding 6.35 mm or appliqué work, Quilts, eiderdowns, comforters and similar articles.”

Protestant filed the protest with an AFR on January 12, 2006, challenging the reclassification and liquidation of the entries at issue. The protestant’s request for AFR was approved. The protest was timely filed pursuant to 19 U.S.C. 1514(c)(3) and 19 C.F.R. 174.12(e)(1).

Protestant has alleged the decision against which the protest is filed is inconsistent with a decision made at a port with respect to the same merchandise. Specifically, protestant cites to four entries of the same merchandise liquidated with refunds in subheading 9404.90.8020, HTSUS, by your Port. Thus, further review is warranted pursuant to 19 CFR §§174.24(a) and 174.25.

FACTS:

The submitted sample is a reversible comforter. Although not submitted with the protest and application for further review, the set will also include a bed skirt and two pillow shams. The comforter consists of a 100% cotton woven fabric printed with a dahlia design that has been spot quilted on the dahlias. Sections around the flower head and leaves are padded bringing them into relief. The other side of the comforter consists of a woven polyester yarn-dyed plaid fabric. A decorative cord is sewn to a fabric tape and inserted into the seam on three sides. It extends 7 to 10 mm from the seam. A layer of polyester batting forms the inner filling of the comforter. The comforter, bed skirt and pillow shams are packaged together in a plastic zippered bag.

ISSUE:

Whether the comforter set is classified in subheading 9404.90.8522, HTSUS, as a comforter with an outer shell of man-made fibers or in subheading 9404.90.8020, HTSUS, as a comforter of cotton not containing any edging, trimming or piping exceeding 6.35 mm, or in subheading 9404.90.8505, as a comforter with an outer shell of cotton.

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification 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 GRI may then be applied.

The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRI. See T.D. 89-80. 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

The comforter is classifiable under heading 9404, HTSUS. The bed skirt is classifiable under heading 6303, HTSUS. The pillow shams are classifiable under heading 6304, HTSUS. Since classification of the submitted merchandise under a single heading cannot be determined by applying GRI 1, we must apply the other GRI.

GRI 2(b) directs that goods consisting of more than one material or substance are to be classified according to the principles of GRl 3. GRI 3(a) provides, in pertinent part, that when two or more headings refer to part only of the items in a set put up for retail sale, the headings are to be considered equally specific. As the comforter set consists of items of headings 9404, HTSUS, 6303, HTSUS and 6304, HTSUS, each heading refers to only part of the subject merchandise, and all headings are considered equally specific. Thus, GRI 3(a) is not applicable.

GRI 3(b) provides that goods put up in sets for retail sale, shall be classified as if they consisted of the materials or component which gives the set its essential character. According to EN (X) to GRI 3(b), "goods put up in sets for retail sale" refers to goods which:

(a) consist of at least two different articles which are, prima facie, classifiable in different headings. . . .;

(b) consist of products or articles put up together to meet a particular need or carry out a specific activity; and

(c) are put up in a manner suitable for sale directly to users without repacking (e.g., in boxes or cases or on boards).

The subject set meets the requirements of "goods put up in sets for retail sale." The components of the set consist of different articles that are, prima facie, classifiable in different headings. They are put up together to carry out the specific activity of furnishing a bed and they are packaged for sale directly to users without repacking. CBP has previously held that the comforter is the component that gives a comforter set its essential character. See Headquarters Ruling Letter (HQ) 959813, dated April 10, 1998; HQ 953395, dated May 12, 1993 and HQ 959304, dated September 3, 1996. Accordingly, the comforter set is classifiable under heading 9404, HTSUS.

The comforter consists of a reversible outer shell comprised of 100% cotton on one side and woven polyester on the other side. The comforter is filled with polyester batting. Therefore, it is a composite good consisting of different materials. Accordingly, we must determine whether it is the outer shell or inner filling which imparts the essential character to the comforter. See GRI 3(b). CBP has determined in previous rulings that it is the outer shell or covering that imparts the essential character of certain bedding articles and similar furnishings falling under heading 9404. See HQ 952479, dated January 4, 1993 (baby seat cushions); HQ 951528, dated August 14, 1992 (infant seat cushion); and HQ 951526, dated August 14, 1992 (infant seat cushion).

The outer shell, in the instant case, provides the shape of the comforter and gives this merchandise its distinctiveness and decorative qualities. Consequently, the comforter is classifiable, in accordance with prior rulings, as if consisting only of the outer shell.

The classification of the comforter based on the outer surface cannot be made solely on the basis of GRI 1 since it is composed of cotton and polyester. GRI 2(b) directs that the "classification of goods consisting of more than one material or substance shall be according to the principles of rule 3." GRI 6 provides that the classification of goods at the subheading level "shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above rules [GRI 1 through 5], on the understanding that only subheadings at the same level are comparable.” As stated above, GRI 3 provides that goods classifiable under two or more headings (and, by application of GRI 6, subheadings), such as composite goods, are classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.

The cotton fabric features the bold print of the dahlias and spot quilting which highlights those flowers. The packaging for the set refers to the dahlia print while the plaid polyester fabric is displayed as a coordinating element with the sheets, pillow shams and bed skirt. The cotton side of the comforter conveys the essential character of the comforter as the featured, more worked and distinctive print on the comforter. As such, it is classified in subheading 9404.90.8505, HTSUS. It cannot be classified in subheading 9404.90.8020, HTSUS, as claimed by protestant as the edging, trimming or piping which is sewn on three sides of the comforter exceeds 6.35 mm.

HOLDING:

The comforter set is classified in subheading 9404.90.8505, HTSUS, which provides for “Matress 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: Other: Other: Other: Quilts, eiderdowns, comforters and similar articles, With outer shell of cotton.” The applicable general column one duty rate at the time of entry was 12.8 percent ad valorem. The textile category code is 362.

The protest should be DENIED. In accordance with the Protest/Petition Processing Handbook, (CIS HB, June 2002, pp 18 and 21), you are to mail this decision, together with the CBP Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. No later than sixty days from the date of this letter, the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World WideWeb at www.cbp.gov, by means of the Freedom of Information Act, and by other methods of public distribution.

Sincerely,

Myles B. Harmon, Director

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