Application for Further Review of Protest No 3001-12-100248; classification of futon covers

HQ H241333 June 26, 2014 CLA-2 OT:RR:CTF:TCM H241333 TNA CATEGORY: Classification TARIFF NO.: 6304.93.00 Port Director, Service Port- Seattle U.S. Customs and Border Protection 1000 Second Ave., Suite 2100 Seattle, WA 98104 Attn: Lucy Zimmerman, Senior Import Specialist Re: Application for Further Review of Protest No: 3001-12-100248; classification of futon covers Dear Port Director: The following is our decision regarding the Application for Further Review (“AFR”) of Protest No. 3001-12-100248, timely filed on July 27, 2012, on behalf of Trading Zone Co., Inc. (“Protestant”). The AFR concerns the classification of mattress covers under the Harmonized Tariff Schedule of the United States (HTSUS). FACTS: The subject merchandise consists of covers for futons and other mattresses. These covers consist of a 65% polyester and 35% cotton fabric, sewn together so that a complete mattress or futon can be slipped into it. The instant futon covers are imported in a finished condition, with a “dry clean only” label and a zipper wrapping around three sides. The importer provided evidence that it imports the futon covers and, after importation, they are tufted to the mattress stuffing. In order to accomplish this, the zipper is opened, and the top half of the subject cover is folded back. The futon mattress is placed into the bottom half of the cover, the top of the cover is folded back, the zippers are closed, and the product is tufted through completely. Once the covers are zippered around the mattress stuffing and sewn or tufted in place, they are not removable or reusable. The Port of Seattle obtained and examined samples of the subject merchandise. These samples were also examined by the National Import Specialist. The subject merchandise was entered in four separate entries between May 5, 2011 and August 12, 2011 under subheading 6307.90.98, HTSUS, which provides for: “Other made up articles, including dress patterns: Other: Other: Other.” CBP liquidated the merchandise on February 10, 2012 in subheading 6302.32.20, HTSUS, as “Bed linen, table linen, toilet linen and kitchen linen: Other bed linen: Of man-made fibers: Other.” Protestant filed this protest on July 27, 2012, claiming classification as entered. ISSUE: Whether the subject merchandise is a mattress shell of heading 6307, HTSUS, the provision for “Other made up articles, including dress patterns,” or a mattress cover of heading 6302, HTSUS, the provision for “Bed linen, table linen, toilet linen and kitchen linen,” or a futon cover of heading 6304, HTSUS, the provision for “Other furnishing articles, excluding those of heading 9404”? LAW AND ANALYSIS: Initially, we note that the matter protested is protestable under 19 U.S.C. §1514(a)(2) as a decision on classification. The protest was timely filed, within 180 days of liquidation. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)). Further Review of Protest No. 3001-12-100248 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(a) because it is alleged that the Port’s liquidation is inconsistent with prior CBP rulings. Specifically, Protestant argues that the Port’s liquidation of the subject merchandise in subheading 6302.32.20, HTSUS, contradicts New York Ruling Letter (NY) DD 895930, dated April 12, 1994. Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes. 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, GRIs 2 through 6 may then be applied in order. The HTSUS provisions under consideration are as follows: 6302 Bed linen, table linen, toilet linen and kitchen linen: 6304 Other furnishing articles, excluding those of heading 9404: 6307 Other made up articles, including dress patterns: The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127 (Aug. 23, 1989). The EN to heading 6302, HTSUS, states, in pertinent part, the following: These articles are usually made of cotton or flax, but sometimes also of hemp, ramie or man-made fibres, etc.; they are normally of a kind suitable for laundering. They include: Bed linen, e.g., sheets, pillowcases, bolster cases, eiderdown cases and mattress covers. 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, theatres, 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 or 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); mantlepiece 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 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 953003; see also HQ 952753, January 12, 1993; HQ 953003, dated February 24, 1993; HQ 953004, dated February 24, 1993; HQ 952492, January 29, 1993; HQ 952527, dated December 11, 1992; HQ 953003, dated February 24, 1993. CBP has long distinguished between shells of heading 6307, HTSUS, and futon covers of heading 6304, HTSUS. Shells have an unfinished opening 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. Mattress covers of heading 6302, HTSUS, are generally used to protect a mattress from dirt and add comfort for the sleeper. Furthermore, CBP has long distinguished traditional mattress covers from merchandise that only incidentally provided these functions. In HQ 965036, for example, we stated that: the instant futon cover is made of a much heavier fabric than a typical mattress cover which is generally white and made of a much thinner material. A mattress cover is generally not meant to be used for a decorative purpose or seen in public. While the sample provided is solid black and the importer asserts that it is sewn to the mattress, many consumers would use the futon cover at issue without another cover on top of it. Thus, the futon cover at issue, unlike a traditional mattress cover, could be part of a room’s décor as opposed to functioning primarily to protect the mattress from dirt. As such, HQ 965036 found that its futon cover was not ejusdem generis with the exemplars listed in EN 63.02, and could not be classified in that heading. Instead, we classified the futon cover at issue in heading 6304, HTSUS, as “Other furnishing articles.” See HQ 965036. The subject merchandise, as imported, consists of fabric that is sewn together so that a mattress can be slipped into it. It has zippers on three sides. Although evidence submitted shows that after importation, the merchandise is stuffed and permanently tufted to the stuffing, 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. Therefore, the instant finished product, sewn to fit the shape of a finished futon, with a zipper reaching around three sides, is described eo nomine as a textile furnishing of heading 6304, HTSUS. It is indistinguishable from the types of futon covers that are not sewn on and are described by the terms of heading 6304, HTSUS. See, e.g., HQ 965036; HQ 965228, dated February 7, 2002; HQ 965229, dated February 7, 2002; HQ 964961, dated February 7, 2002; HQ 965227, dated February 7, 2002; HQ 965133, dated December 7, 2001. It is unlike the shells of heading 6307, HTSUS, which contain no zippers or other means of closure. Therefore, the subject merchandise is also distinguishable from the merchandise of NY DD 895930, dated April 12, 1994, on which Protestant relied, because the merchandise there is described only as a shell of heading 6307, HTSUS. As a result, the subject merchandise is classified in heading 6304, HTSUS. HOLDING: By application of GRI 1, the subject mattress covers are classified under heading 6304, HTSUS. They are specifically provided for under subheading 6304.93.00, HTSUS, which provides for: “Other furnishing articles, excluding those of heading 9404: Other: Not knitted or crocheted, of synthetic fibers.” The general, column one, rate of duty is 9.3% ad valorem. The textile category is 666. You are instructed to DENY the protest, except to the extent that reclassification of the subject merchandise as indicated above results in a partial allowance. In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), 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 or entries in accordance with the decision must be accomplished prior to mailing the decision. Sixty days from the date of the decision, the Office International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.CBP.gov, by means of the Freedom of Information Act, and other methods of public distribution. Sincerely, Myles B. Harmon, Director Commercial and Trade Facilitation Division