CLA-2-94:OT:RR:NC:N4:433
Debbie Dudzinski
Customs Compliance Analyst
Homestead International Group, Ltd.
350 5th Avenue, 9th floor
New York, NY 10118
RE: The tariff classification of a comforter and shams, packaged together from Pakistan.
Dear Ms. Dudzinski:
In your letter dated February 15, 2017, you requested a tariff classification ruling. A sample was received in its imported condition.
Item number 22083604BG002, is identified by barcode on the clear plastic packaging bag as the “BCBG Ocean Waves Comforter Set – Coral Pink.” The item consists of one full/queen comforter and two standard pillow shams contained within a color coordinated drawstring fabric bag. The comforter has an outer shell of 100% cotton and a fill of 100% polyester fiber. The pillow shams are made of 100% cotton. The drawstring fabric bag is made of 100% polyester fiber. On the outside of the drawstring bag there is a sewn in stitched label containing: the title of the good “BCBGeneration Ocean Waves;” the material content of the comforter, shams and drawstring bag; and the care instructions. This item is packaged in a corrugated case, one per shipping carton.
This office will first answer your question of whether the fabric bag is classified as part of the set or should the fabric bag be separately classified. If the fabric bag is entered separately from that of the other contents, then we have no standing to decompose the contents of the “BCBG Ocean Waves Comforter Set – Coral Pink,” resulting for tariff purposes in the comforter, shams and fabric bag being classified separately. If upon meeting the requirements of being classified as a set, then we will determine the essential character of the set.
The United States Court of International Trade, Estee Lauder, Inc., v. United States, Slip Op. – 12 – 1, Court No. 07-00217, dated January 3, 2012, provides direction to the set-container conundrum. The Court stated: “The statute itself provides the reasonable solution to the set-container conundrum. GRI 3 (b) provides that a set is classified according to the heading of the good that provides its essential character. If a set container provides the set with its essential character, then the entire set should be classified under the heading for the container. If not, then the set should be classified according to that other item that provides the essential character. Employing the traditional essential character analysis, i.e., reviewing “the nature of the [good], its bulk, quantity, weight or value, or by the role of the constituent [good] in relation to the use of the goods,” resolves the issue.”
In its analysis, the Court further found that nothing in the statute required a set container to be closely fitted to its contents or that an entire line of products should be categorically prevented from being classified as sets simply because their container is reusable. To this degree, we observe a difference in the Estee Lauder case, specifically the condition of the container, in that the drawstring fabric bag of the merchandise concerned is closely fitted to the comforter and shams contained within, and also the drawstring fabric bag with sewn in label is not intended to be reused either for the same purpose or another purpose. Even with noting the differences in the containers of Estee Lauder and the merchandise concerned, a tightly fitted container is not a defensible line of reasoning for determining the essential character of a set to be its container.
To reiterate, the statute itself provides the reasonable solution to the set-container conundrum. Consistent with the Court in Estee Lauder, the [issue] is not whether the bag is separately classifiable from that of the comforter and shams, but rather which one of the contents (the comforter, the shams or the drawstring fabric bag) impart the essential character to the set.
When interpreting and implementing the Harmonized Tariff Schedule of the United States (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. CBP believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The ENs to the HTSUS, General Rules of Interpretation (GRI), at GRI 3 (b), X, provides that the term “goods put up in sets for retail sale” means goods that: (a) consist of at least two different articles which are, prima facie, classifiable in different headings; (b) consist of 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. Goods classifiable as “sets” under GRI 3 (b) of the HTSUS are classified as if they consisted of the component or components taken together, which can be regarded as conferring on the set as a whole its essential character – see EN X to the GRIs.
We find that the “BCBG Ocean Waves Comforter Set – Coral Pink” meets the first requirement of the ENs at GRI 3 (b), X, HTSUS, because the merchandise concerned consists of two or more goods (comforter heading 9404, shams heading 6304 and fabric bag heading 6307), which are prima facie classifiable in two or more headings of the HTSUS. In addition the “BCBG Ocean Waves Comforter Set – Coral Pink” meets the second requirement, because the comforter and shams contained within a drawstring fabric bag are put up together for purposes of coordinated bedding. Finally, the “BCBG Ocean Waves Comforter Set – Coral Pink” is packaged together ready for retail sale suitable for direct purchase, without repacking of its contents. Accordingly, the merchandise concerned is a set for tariff purposes with the essential character of the set imparted by the comforter having an outer shell of 100% cotton.
The applicable subheading for the “BCBG Ocean Waves Comforter Set – Coral Pink,” not containing any embroidery, lace, braid, edging, trimming, piping exceeding 6.35 mm or applique work, will be 9404.90.8020, Harmonized Tariff Schedule of the United States (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: 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.” The rate of duty will be 4.4% ad valorem.
The applicable subheading for the “BCBG Ocean Waves Comforter Set – Coral Pink,” if containing any embroidery, lace, braid, edging, trimming, piping exceeding 6.35 mm or applique work, will be 9404.90.8505, Harmonized Tariff Schedule of the United States (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: Other: Other: Quilts, eiderdowns, comforters and similar articles: With outer shell of cotton.” The rate of duty will be 12.8% ad valorem.
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 World Wide Web at https://hts.usitc.gov/current.
This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).
A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Neil H. Levy at [email protected].
Sincerely,
Steven A. Mack
Director
National Commodity Specialist Division