CLA-2 RR:CR:TE 964961 BAS
Anil Mehta
A.P. Imports, Inc.
21001 Glenwold Drive
Walnut, CA 91789
RE: Revocation of NY G87021, February 21, 2001; Classification of an unstuffed futon cover
Dear Mr. Mehta:
This is in reply to your letter, dated February 26, 2001, on behalf of A.P. Imports, Inc., requesting reconsideration of New York Ruling Letter (NY) G87021, dated February 21, 2001, concerning the classification of an unstuffed futon cover. You submitted a sample of the futon cover to assist us in our determination.
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 G87021, 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 an unstuffed futon cover. The cover will be made from either 60 percent cotton and 40 percent polyester or 70 percent cotton and 30 percent polyester woven fabric. It will be imported in two sizes either 54 x 75 inches or 39 x 75 inches. Three sides of the cover are sewn and the fourth has a zippered opening. The cover is sized to encase a 4.5-inch thick futon cushion. After importation the cover is filled with plastic foam and poly/cotton batting and zippered closed. The cushion is stitched through all layers (tufted) to hold the components together and prevent shifting. In NY G87021, the futon cover 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 napped….Other. You argue that the futon cover should be classified in subheading 9409.90.20 as part of a mattress.
ISSUE:
Whether the futon cover is properly classifiable in heading 9404, HTSUSA, as an article of bedding and similar furnishing fitted with springs or stuffed or internally fitted with any material; heading 6302, HTSUSA, as bed linen; or heading 6304, HTSUSA, as an other furnishing article.
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 9404, HTSUSA, as an article or bedding or similar furnishing fitted with springs or stuffed or internally fitted with any material; heading 6304, HTSUSA, as an other furnishing article; or heading 6302, HTSUSA, as bed linen.
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 9404
Heading 9404, HTSUSA, provides for “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.” The ENs to heading 9404, HTSUSA, in addition, state that the heading covers inter alia articles of bedding which are sprung or stuffed or internally fitted with any material (cotton, wool, horsehair, down, synthetic fibers, etc.) As this futon cover is not stuffed or fitted with any material, at the time of importation, it is precluded from classification in heading 9404, HTSUSA.
You assert that the merchandise at issue is a “shell” and therefore is part of the mattress. The item, although referred to as a shell, is a finished product, similar to a cushion cover, at the time of importation and therefore cannot be appropriately classified as part of a mattress. Heading 9404, HTSUSA, moreover, does not provide for parts. Since the instant futon cover as imported is a finished product, it would not be properly classifiable in heading 9404, HTSUSA.
Having precluded classification under heading 9404, HTSUSA, 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 6304, HTSUSA, which provides for other textile furnishing articles, excluding those of heading 9404, HTSUSA, and heading 6302, HTSUSA, which provides for inter alia, bed linen.
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. The instant futon cover is made of a very heavy fabric and is imported in white, burgundy, green and black. A typical mattress cover is white and made of a relatively thinner material. Unlike the subject merchandise, a typical mattress cover is generally not meant to be used for a decorative purpose. A visual examination of the subject merchandise reveals that it is clearly meant to be decorative, like a cushion cover, rather than used as a means to protect a mattress from dirt. In addition, the fact that the futon cover is imported in a variety of colors indicates that, while functional, it is likely to be used to enhance décor. Accordingly, the instant futon cover is not esjudem 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.
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. 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 either 60% or 70% cotton, 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 either 60 percent cotton and 40 percent polyester or 70 percent cotton and 30 percent polyester 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, the 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 your local Customs office. The Status Report on Current Import Quotas (Restraint Levels) is also available on the Customs Electronic Bulletin Board (CEBB) which can be found on the U.S. Customs Service Website at www.customs.gov.
Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, your client should contact your local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.
Sincerely,
John Durant, Director
Commercial Rulings Division
HEADING 6304
Heading 6304, HTSUSA, provides for other furnishing articles, excluding those of heading 9404, HTSUSA. The ENs to heading 6304 provide, in pertinent part, that this heading covers furnishing articles of textile materials which include inter alia textile furnishings for . . . bedspreads (but not including bed coverings of heading 9404), cushion covers and loose covers for furniture. The instant merchandise is not esjudem generis with the exemplars of heading 6304, HTSUSA. The futon mattress cover cannot be considered a “loose cover” for furniture as it is designed to fit the futon mattress relatively tightly. The futon mattress cover is distinguishable, furthermore, from the loose slipcovers sold for couches that have ties to adjust the fit and that drape over the furniture rather than conform to its shape. [See HQ 965065, NOT YET DATED].
Arguably, the futon mattress itself could be thought of as a cushion thereby making the instant futon mattress cover a “cushion cover.” Previous rulings, however, have been consistent in referring to futons as mattresses as opposed to cushions and have found similar merchandise to be futon mattress covers rather than cushion covers. See HQ 965133, NOT YET DATED – IN REVIEW; NY G87021, dated February 21, 2001; NY C81111, dated November 13, 1997; NY 805667, dated January 11, 1995; NY 804095, dated November 23, 1994. Conversely, fitted slipcovers designed for a variety of seats as opposed to futon mattresses have been classified in heading 6304, HTSUSA. [Emphasis added] See NY B84450, dated May 12, 1997.
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. The ENs for heading 6302 specifically included mattress covers as a form of bed linen.
A mattress cover is generally used to protect a mattress from spilled liquids and/or to create a barrier between the sleeper and the bedding to prevent the penetration of allergens into the mattress. The subject merchandise, similarly protects the futon mattress from spilled liquids and creates a barrier between the sleeper and the bedding.
Notably the futon cover differs slightly from the “traditional” mattress cover in that after it is stuffed with various fillings, the mattress is stitched through all layers (tufted) to hold the components together to prevent shifting. Most mattress covers are not stitched to the mattress. Nonetheless, fitted sheets are generally put right on top of the subject merchandise as with a mattress cover.
A mattress cover, furthermore, is rarely taken off a bed and fitted sheets are generally placed over a mattress cover for sleeping. Because of a futon cover’s tight fitting nature and the weight of a futon mattress, futon mattress covers are not easily removed and replaced. Therefore, one would typically put sheets over the instant futon mattress cover when using the futon for sleeping. Thus, although the futon mattress cover differs slightly from a “traditional” mattress cover in that it is stitched to the mattress, it essentially the same function as a mattress cover.
Accordingly, the instant futon mattress cover is properly classified in heading 6302, HTSUSA. This holding is consistent with several rulings classifying futon mattress covers including decorative printed covers as bed linen. See HQ 965133, NOT YET DATED, NY G87021, dated February 21, 2001; NY C81111, dated November 13, 1997; NY 805667, dated January 11, 1995; and NY 804095, dated November 23, 1994.
Having established that the proper heading for the slipcover is heading 6302 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 slipcover is composed of 60 percent or 70 percent cotton, it is properly classifiable under subheading 6302.31.9050, HTSUSA which provides for “Bed linen, table linen, toilet linen and kitchen linen; Other bed linen: Of cotton; Other; Not napped; Other.”
HOLDING:
The futon mattress cover composed of either 60 percent cotton and 40 percent polyester or 70 percent cotton and 30 percent polyester woven fabric is properly 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 napped; Other.” The general column one rate of duty is 7 percent ad valorem. The textile quota category applicable to this provision is 362.
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 on Current Import Quotas (Restraint Levels), an issuance of the U.S. Customs Service, which is updated weekly and is available 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, your 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
Commercial Rulings Division