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HQ W967672




June 2, 2006

CLA-2 RR:CTF:TCM 967672 KBR

CATEGORY: CLASSIFICATION

TARIFF NO.: 9404.30.8000

Mr. Chris Fladager
Vice President – Director of Imports
Norvanco International Inc.
3514 142nd Avenue East
Sumner, WA 98390

RE: Reconsideration of NY L80719; Ready Bed

Dear Mr. Fladager:

This is in reference to your letter dated April 13, 2005, on behalf of Spin Master, Inc., in which you requested reconsideration of New York Ruling Letter (NY) L80719, issued to you by the Customs and Border Protection (“CBP”) National Commodity Specialist Division, New York, dated December 4, 2004, concerning the classification, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of a Ready Bed, child’s sleeping bag with insertable, inflatable air mattress. Two samples of the product were submitted for our review.

FACTS:

The Ready Bed is intended for use by children. It is a textile fabric sleeping bag with an inflatable air mattress that can be inserted into the sleeping bag. The sleeping bag cover is made of 100 percent polyester fabric with an 80 percent polyester/20 percent cotton lining. The samples received are printed with a “Hello Kitty”™ design. The inflatable mattress is 100 percent polypropylene and fits into a full length pocket between the lining of the bottom base. The sleeping bag also has an attached sleeved headrest cover for a pillow (not included) to be inserted into. There is a full length zipper on the outside of the cover of the sleeping bag that is used to close the sleeping bag. The article also includes a simple plastic foot pump for inflating the mattress and a specially shaped and designed fabric bag to store and carry all the items. The components are packaged together in a cardboard box for retail sale.

The sleeping bag design used in NY L80719 has a lining of 80% polyester and 20% cotton in both the top portion as well as the bottom (underneath) portion of the sleeping bag. The new design of the sleeping bag has a lining only in the top portion of the sleeping bag.

NY L80719 determined that the Ready Bed was a set for tariff classification purposes, with the essential character determined by the sleeping bag. Because the sleeping bag cover is “stuffed”, NY L80719 classified the Ready Bed in subheading 9404.30.8000, HTSUSA, as “[m]attress 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: [s]leeping bags: [o]ther.” In your request for reconsideration, you stated that you have modifed the article so that the inner layer does not contain lining material. You request the reconsideration based on this modified design and believe the article should be classified in heading 3926.90.7500, HTSUSA, as: “[o]ther articles of plastics and articles of other materials of headings 3901 to 3914: [o]ther: [p]neumatic mattresses and other inflatable articles, not elsewhere specified or included”.

ISSUE:

Is the Ready Bed classifiable as an “article of bedding” or an “other articles of plastic”?

LAW AND ANALYSIS:

Initially we note that pursuant to 19 CFR 177.12(a), a revocation may only be issued in situations which are “substantially identical transactions.” In this instance, you report that you have materially changed the article imported. Therefore, the new model of Ready Bed is not a substantially identical transaction to that in NY L80719 and is not subject to a reconsideration procedure. As such, we are denying your request for reconsideration. However, we are proceeding as if this is a request for ruling on a new article.

Merchandise is classifiable under the HTSUSA in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the HTSUSA is such that virtually all goods are classified by application of GRI 1, that is, 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 HTSUSA provisions under consideration are as follows:

3926 Other articles of plastics and articles of other materials of headings 3901 to 3914: [o]ther: :

3926.90 Other:

3926.90.7500 Pneumatic mattresses and other inflatable articles, not elsewhere specified or included.

9404 Mattress 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:

Sleeping bags:

9404.30.8000 Other.

In interpreting the headings and subheadings, CBP looks to the Harmonized Commodity Description and Coding System Explanatory Notes (ENs). Although not legally binding, they provide a commentary on the scope of each heading of the HTSUSA. It is CBP’s practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUSA. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

First, we note that the Ready Bed consists of a sleeping bag, inflatable mattress, foot pump, and storage bag. These different articles are classifiable in different headings within in the HTSUSA. Therefore, GRI 3 must be considered in classifying merchandise put up in sets for retail sale. GRI 3(b) provides that:

Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.

EN (X) for GRI 3(b) states:

(X) For the purposes of this Rule, the term " goods put up in sets for retail sale " shall be taken to mean goods which:

(a) consist of at least two different articles which are, prima facie, classifiable in different headings. Therefore, for example, six fondue forks cannot be regarded as a set within the meaning of this Rule;

(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 Ready Bed meets the GRI 3(b) and attendant EN (X) definition of “goods put up in sets for retail sale.” First, the Ready Bed consists of at least two different articles which are, prima facie, classifiable in two different headings. Secondly, the items are put up together to carry out the specific activity of sleeping and the items will be used together or in conjunction with one another. Lastly, the articles are put up in a manner suitable for sale directly to users without repacking. We thus believe that the Ready Bed qualifies as a set of GRI 3(b).

Second, we will look at the factual basis of your request in distinguishing the model subject to NY L80719 from the new model of Ready Bed. In NY L80719, CBP determined that the Ready Bed was classifiable in heading 9404, as: “articles of bedding and similar furnishing . . . stuffed or internally fitted”, because the sleeping bag component of the Ready Bed contained a lining. You state that the new model of Ready Bed “contains no lining material.” However, upon inspection of the sleeping bag portion of the Ready Bed, the top and sides of the sleeping bag still have an insulating lining. The lining may have been removed from the bottom portion of the sleeping bag which contains the pocket for holding the inflatable mattress, however, as long as the top portion retains the lining, the Ready Bed is still prima facie classifiable in heading 9404, HTSUSA.

You believe that the Ready Bed should be classified in heading 3926, HTSUSA, due to the inflatable mattress. Because the Ready Bed is a retail set, we must apply GRI 3(b), which provides that retail sets are to be classified according to the component that gives the good its essential character. We must determine whether the inflatable mattress or the sleeping bag imparts the essential character to the Ready Bed.

EN VIII to GRI 3(b) explains that "[t]he factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of the constituent material in relation to the use of the goods." Recent court decisions on the essential character for GRI 3(b) purposes have looked primarily to the role of the constituent material in relation to the use of the goods. See Better Home Plastics Corp. v. U.S., 915 F. Supp. 1265 (CIT 1996), aff’d 119 F. 3d 969 (Fed. Cir. 1997); Mita Copystar America, Inc.
v. U.S., 966 F.Supp. 1245 (CIT 1997), rehear’g denied, 994 F. Supp. 393 (1998); Vista Int’l Packing Co. v. U.S., 890 F. Supp. 1095 (CIT 1995). See also, Pillowtex Corp. v. U.S., 893 F. Supp. 188 (CIT 1997), aff’d 171 F. 3d 1370 (CAFC 1999).

In the instant case, the essential character of the Ready Bed is determined by the sleeping bag component. The Ready Bed is a retail set put up together for the particular need or specific activity of sleeping. The sleeping bag component provides the warmth and comfort for sleeping. The sleeping bag may be used without the inflatable mattress, e.g., like a blanket, but the inflatable mattress is not likely to be used without the sleeping bag. When in use, the child will only be in contact with the sleeping bag. The inflatable mattress is inserted into the sleeping bag and is not intended to be seen. The sleeping bag provides the more bulk than the air mattress.

CBP has consistently found that a sleeping bag and inflatable mattress set is classifiable in subheading 9404.30.8000, HTSUSA. See NY L89204 (December 5, 2005), NY K88497 (August 19, 2004), NY D80214 (August 6, 1998), NY K80150 (November 12, 2003), and NY K88497 (August 19, 2004). Therefore, pursuant to the above analysis, we find that the essential character of the Ready Bed is determined by the sleeping bag. The Ready Bed is classified in heading 9404, specifically in subheading 9404.30.8000, HTSUSA, as: “[m]attress 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: [s]leeping bags: [o]ther.”

HOLDING:

By application of GRI 3(b), the Ready Bed is classified in heading 9404. It is provided for in subheading 9404.30.8000, HTSUSA, as “[m]attress 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: [s]leeping bags: [o]ther.” The 2006 column one, general rate of duty is 9% ad valorum.

Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUSA and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov/tata/hts.

EFFECT ON OTHER RULINGS

NY L80719 is affirmed.

Sincerely,

Myles B. Harmon, Director
Commercial and Trade Facilitation Division


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