HQ H232977
CLA-2 OT:RR:CTF:TCM H232977 TSM
Mr. Vahe Karrian
Pacific Century Customs Service
2936 Columbia Street
Torrance, CA 90503
RE: Reconsideration of NY N206478; Classification of a sofa kit from China.
Dear Mr. Karrian:
This letter is in response to your request for reconsideration of New York Ruling Letter (NY) N206478, issued to Ramtex Incorporated on March 12, 2012, concerning the tariff classification of a sofa kit from China. In that ruling, U.S. Customs and Border Protection (“CBP”) classified the subject merchandise under subheading 6307.90.98, Harmonized Tariff Schedule of the United States (“HTSUS”), which provides for “Other made up articles, including dress patterns: Other: Other: Other.” In a letter dated June 15, 2012, you argued that the classification of the subject sofa kit should be reconsidered without providing an alternative heading. Based on the record, your position appears to be that the subject merchandise is not “made-up,” but used in the manufacturing of furniture that should be classified in heading 9403, HTSUS, which provides for “Other furniture and parts thereof.” We have reviewed NY N206478 and found it to be correct. For the reasons set forth below we hereby affirm NY N206478.
FACTS:
NY N206478, issued to Ramtex Incorporated on March 12, 2012, describes the subject merchandise as follows:
“The so-called kit is made up of six unfinished covers for futon cushions and pillows made of upholstery-grade polyester fabric. The items are a top and bottom cover and four unstuffed pillows of 100% woven polyester that will be finished and installed by the futon manufacturer over futon mattresses. ……………………………................... The top piece measures 75”L x 55”W x 8”H and is sewn on all four sides. The bottom piece measures 75”L x 55”W with rounded corners. The unfilled pillow covers are finished on three sides; the fourth side has a 7” opening. The pillows come in two sizes, 21” square and 19” square.”
In the request for reconsideration, dated June 15, 2012, Ramtex Incorporated stated that the subject sofa kit, as described above, should be reclassified as “furniture parts.” Attached to the request for reconsideration was a “flow chart” depicting the process that the subject sofa kits follow from the time of their importation to the time they are sold to the end consumer. Thus, the “flow chart” describes the process as follows:
The sofa kit is sold to the manufacturer that then manufactures the sofa and sells it to a retailer that sells it to the end consumer.
The end consumer does not need to stuff or sew anything once they purchase the finished sofa. The manufacturer sews the “mattress kit” onto a mattress, then packages it with the complete frame in a box.
The Morgan Futon items cannot be purchased separately. Each futon comes with the mattress/seat (with non-removable cover), four pillows (with non-removable stuffing) and the wooden frame.
We sell the “sofa kits” to a manufacturer that then sews the “kit” closed over a mattress, then tufts the fabric to the mattress to hold it in place. They buy the wooden frame for the mattress from a different vendor.
The consumer does not purchase a bare mattress, and the cover cannot be removed from the mattress.
We have no advertising/marketing literature for the imported kit – this is only a piece of the end product and changes hands three more times before reaching the end consumer.
Also attached to the request for reconsideration was an undated letter from the president of Ramtex Incorporated to CBP, stating, in pertinent part, the following: “The items in the sofa kit are not ‘made up.’ Once here [in the United States,] the pieces of fabric are sewn directly to the foam cushions and then tufted. The covers cannot be removed, reused or washed. The 21” square and 19” square unfilled pillow covers are unfinished on one side (a 7” opening). The pillows are filled here [in the United States] and sewn shut. The covers cannot be removed, reused or washed. ….. I believe that these are unfurnished pieces used in the manufacture of furniture.”
ISSUE:
What is the correct classification of the sofa kits under the HTSUS?
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the United States (HTSUS) 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 GRI may then be applied.
In addition, in interpreting the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
The HTSUS provisions under consideration are as follows:
6304 Other furnishing articles, excluding those of heading 9404
6307 Other made up articles, including dress patterns
9401 Seats (other than those of heading 9402), whether or not convertible into beds, and parts thereof
9403 Other furniture and parts thereof
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.
To determine the correct classification of the sofa kits under consideration, we follow the above-referenced provision of GRI 1 and consider the relative Section and Chapter Notes. First, it should be noted that Note 1(s) to Section XI, HTSUS, states that this Section does not cover “Articles of chapter 94 (for example, furniture, bedding, lamps and lighting fittings).” Accordingly, we consider whether or not the sofa kits at issue are “articles of chapter 94.” Specifically, we consider whether the sofa kits are classified in the following headings of Chapter 94, HTSUS: (1) heading 9401, HTSUS, which provides for “Seats and parts thereof”; (2) heading 9403, HTSUS, which provides for “Other furniture and parts thereof”; and (3) heading 9404, HTSUS, which 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.”
Heading 9401, HTSUS, provides for “seats, whether or not convertible into beds, and parts thereof.” The EN to heading 9401 states that the heading encompasses, inter alia, couches, settees, sofas, ottomans and the like, even if they are convertible into beds. With regard to parts, the EN to heading 9401 states the following: “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. Separately presented cushions and mattresses, sprung, stuffed or internally fitted with any material or of cellular rubber or plastics whether or not covered, are excluded (heading 94.04) even if they are clearly specialized as parts of upholstered seats (e.g., settees, couches, sofas). When these articles are combined with other parts of seats, however, they remain classified in this heading. They also remain in this heading when presented with the seats of which they form part.”
Unlike the items identified in the EN to heading 9401, such as backs, bottoms and arm-rests, which are united by the fact that they are essential parts of seats, the sofa kits in the instant case are not components of chairs or other seats. Rather, the sofa kits serve as items used for the protection of futon mattresses and pillows. Therefore, they are not "ejusdem generis" or "of the same kind" of merchandise as the examples listed in the EN to heading 9401, HTSUS. See, HQ 965227, dated February 7, 2002. Moreover, although the EN also states that separately presented cushions and mattresses, when presented with other parts of seats, are classifiable in heading 9401, HTSUS, we note that the sofa kits are imported separately and are comprised of unstuffed pillows and futon mattress covers. 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, HTSUS). See also, HQ 960195, dated August 13, 1997 (leather sofa covers, placed directly over the frame of the sofa, are classified as parts of seats in subheading 9401, HTSUS). Based on the foregoing, we find that the subject sofa kits are not properly classified under heading 9401, HTSUS, as parts of seats.
Heading 9403, HTSUS, provides for “Other furniture and parts thereof.” Heading 9403 provides for, inter alia, furniture of metal, wood, plastics, cane and bamboo, and parts thereof. Thus, this heading covers furniture such as cupboards, show-cases, tables, telephone stands, writing-desks, escritoires, book-cases, and other shelved furniture. In contrast, the sofa kits under consideration, as imported, consist of unfinished covers for futon mattresses and unstuffed pillows, which are not furniture or parts thereof. In this regard we note that although submitted evidence shows that after importation the unfinished futon covers, sewn onto futon mattresses, are packaged with the sofa frames for retail, it is a well-established principle that goods must be classified in their condition as imported. See Mita Copystar Am. V. United States, 21 F.3d 1079, 1082 (Fed. Cir. 1994); See also HQ H197758, dated April 27, 2012; HQ H225011, dated November 5, 2013; HQ H154040, dated June 9, 2011; HQ H135335, dated April 18, 2011. Accordingly, we find that the subject sofa kits are not properly classified under heading 9403, HTSUS, as furniture or parts thereof.
Heading 9404, HTSUS, 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.” Thus, heading 9404 covers products that are fitted with springs or stuffed or internally fitted with any material, and specifically includes mattresses, pillows, cushions and other stuffed bedding. In contrast, the subject sofa kits consist of unfinished covers for futon mattresses and unstuffed pillows, and contain no components that are stuffed or fitted. Therefore, we find that the sofa kits at issue are not classified under heading 9404, HTSUS, as stuffed or internally fitted articles of bedding and similar furnishings. We note that heading 9404, HTSUS, does not provide for parts. We also note that the subject sofa kits cannot be classified in heading 9404, HTSUS, as incomplete or unassembled items in accordance with GRI 2(a), since the kits’ components do not have the essential character of the finished goods provided for in heading 9404, HTSUS.
Having precluded classification of the subject sofa kits in Chapter 94, HTSUS, we conclude that the sofa kits are not excluded from classification in Section XI, HTSUS (Chapter 63). The next consideration is regarding which heading of Chapter 63 describes the subject merchandise. Specifically, we consider the following headings of Chapter 63, HTSUS: (1) heading 6304, HTSUS, which provides for “Other furnishing articles, excluding those of heading 9404”; and (2) heading 6307, HTSUS, which provides for “Other made up articles, including dress patterns.”
The EN to heading 6304, HTSUS, states, in pertinent part, the following: “This heading covers furnishing articles of textile materials, other than those of the preceding headings or of heading 94.04, for use in the home, public buildings, theaters, churches, etc., and similar articles used in ships, railway carriages, aircraft, trailer caravans, motor-cars, etc. These articles include wall hangings and textile furnishings for ceremonies (e.g. weddings and funerals); mosquito nets; bedspreads (but not including bed coverings of heading 94.04); cushion covers, loose covers for furniture, antimacassars; table covers (other than those having the characteristics of floor coverings – see Note 1 to Chapter 57); maintenance runners; curtain loops; valances (other than those of heading 63.03).”
The EN to heading 6307, HTSUS, states, in pertinent part, the following: “This heading covers made up articles of any textile material which are not included more specifically in other headings of Section XI or elsewhere in the Nomenclature.
Mattress shells of heading 6307, HTSUS, are shells that are generally imported in an unfinished condition with at least one side unsewn. Once imported, the shell is generally stuffed and then sewn. See HQ 965036, dated December 7, 2001. They are also not stuffed or filled like pillows of heading 9404, HTSUS; nor are they designed for or fitted with a zipper closure typical of a finished cushion cover. See HQ 952753, January 12, 1993; HQ 953003, dated February 24, 1993; HQ 953004, dated February 24, 1993; HQ 952492, dated January 29, 1993; HQ 952527, dated December 11, 1992.
CBP has long distinguished between shells of heading 6307, HTSUS, and futon covers of heading 6304, HTSUS. See HQ 241333, dated June 26, 2014. Shells have an unfinished opening at least at one end, which must be sewn closed after the shell is stuffed. Covers are finished products that are imported with some means of closure, usually a zipper on one or more sides. The cushion form or unfinished mattress is inserted into the opening, and the product is zippered closed. The futon cover also conforms to the shape of the futon cushion in the same way that most cushion covers conform to the shape of the cushion they are meant to cover. See HQ 965036; HQ 953003; HQ 953004.
The futon mattress covers under consideration, as imported, consist of top and bottom covers to be installed over futon mattresses. The top covers are sewn on all four sides and the bottom covers have quarter-circles (are rounded) at two corners. Unlike the above-referenced finished futon covers with zipper closures, classified in heading 6304, the subject futon mattress covers are unfinished “shells.” The term “made up” is defined in Note 7 to Section XI, and means, among other things, at Note 7(a) “cut otherwise than into squares or rectangles,” and at Note 7(f) “assembled by sewing, gumming or otherwise.” We find that the top covers are “made up” within the meaning of Note 7(f) to Section XI and the bottom covers are “made up” within the meaning of Note 7(a) to Section XI. The futon mattress covers are “made up” articles which are not included more specifically in other headings of Section XI or elsewhere in the Nomenclature. Accordingly, we find that they are classified in heading 6307, HTSUS, as “other made up articles.”
With respect to the subject unstuffed pillows, which are best described as unfinished “shells” with closed seams on three sides and an unfinished opening on the fourth side, we find that they are also “made up” within the meaning of Note 7(f) to Section XI because they are “assembled by sewing.” The unstuffed pillows are “made up” articles which are not included more specifically in other headings of Section XI or elsewhere in the Nomenclature. Accordingly, we find that they are classified in heading 6307, HTSUS, as “other made up articles.” We note that Customs has consistently held that "pillow shells" are classifiable in heading 6307, HTSUS. See HQ 963484, dated April 20, 2001. See also, HQ 953003, dated February 24, 1993; HQ 953004, dated February 24, 1993; HQ 084046, dated May 11, 1989; HQ 084718, dated July 31; 1989; HQ 952527, dated December 11, 1992; and HQ 952492, dated January 29, 1993.
Based on the foregoing, we conclude that the subject sofa kits, consisting of the futon mattress covers and unstuffed pillows, as discussed above, are classified in heading 6307, HTSUS.
HOLDING:
By application of GRIs 1 and 6, the subject sofa kits are classified in heading 6307, HTSUS, and specifically in subheading 6307.90.98, HTSUS, as “Other made up articles, including dress patterns: Other: Other: Other.” The 2015 general column one rate of duty is 7%.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at www.usitc.gov/tata/hts/.
EFFECT ON OTHER RULINGS:
NY N206478, dated March 12, 2012, is AFFIRMED.
Sincerely,
Joanne Roman Stump, Acting Director
Commercial and Trade Facilitation Division