HQ 965149

February 14, 2002

CLA-2 RR:CR:TE 965149 BAS

CATEGORY: Classification

TARIFF NO.: 6307.90.9889

Ms. Leigh Smith

US JHI Corporation

8612 Fairway Place

Middleton, Wisconsin 53562

RE: Modification of NY E89383, November 23, 1999; Classification of
bumper pad and soft padded headboard

Dear Ms. Smith:

This is in reference to New York Ruling Letter (NY) E89383 issued to you
on November 23, 1999, in response to your letter of October 27, 1999 to
the Director, Customs National Commodity Specialist Division in New
York, on behalf of US JHI Corporation, requesting a ruling on the
classification under the Harmonized Tariff Schedule of the United States
Annnotated (HTSUSA) of a bumper pad, comforter, soft headboard, fitted
sheet and bed skirt.

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 modification of

NY E89383, 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.

In NY E89383, dated November 23, 1999, a five piece bedding set imported
packed for retail sale was classified in subheading 9404.90.8522, HTSUS,
which provides for mattress supports; articles of bedding and similar
furnishing fitted with springs or stuffed or internally fitted with any
material or of cellular rubber or plastics, whether or not covered.
Appropriate classifications were provided for each item in the set
should it be imported separately. The bumper pad and soft headboard were
classified in subheading 9403.90.8080, HTSUSA, which provides for other
furniture and parts thereof. We have now had occasion to review that
decision and found it to be in error insofar as the classification of
the crib bumper and padded headboard is concerned.

FACTS:

The merchandise under consideration consists of a bumper pad and a soft
headboard for a crib.

One side of the bumper pad (KT948 BP) is made from 100 percent cotton
woven fabric. This "farm checked" fabric is printed with a check pattern
that incorporates sheep and clover in the design. The reverse side is
made from 65 percent polyester and 35 percent cotton woven fabric. This
side is solid yellow in color. It features tie strings used to attach
the pad to the crib. It also has piping and a ruffle.

The soft headboard (KT948S) is dome shaped and has tie strings used to
attach the item to the headboard of a crib. One side is made from the
"farm checked" 100 percent cotton woven fabric and the other side from a
65 percent polyester and 35 percent cotton woven fabric. The top and
side edges have a sewn in ruffle and piping. The front panel contains a
sheep and clover embroidered and appliqued design.

The bumper pad and soft headboard were classified in subheading
9403.90.8080, HTSUSA, which provides for other furniture and parts
thereof. This ruling letter only modifies NY E89383 insofar as it
concerns the classifications of the bumper pad and soft headboard when
imported separately.

ISSUE:

Whether the bumper pad and padded headboard are properly classifiable in
heading 9403, HTSUSA, as other furniture and parts thereof or under
heading 6307, HTSUSA, as other made-up textile articles?

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 crib bumper pad and headboard are potentially classifiable in two
HTSUSA headings. One possible heading is 9403, HTSUSA, which provides
for other furniture and parts thereof. Heading 6307, HTSUSA, which
provides for other made up textile articles, is the other potentially
applicable heading for the articles in question.

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 9403 includes "Other furniture and parts thereof." Note 4(A) of
the Chapter Notes to Chapter 94 defines furniture as:

Any "movable" articles (not included under other more specific headings
of the Nomenclature), which have the essential characteristic that they
are constructed for placing on the floor or ground, and which are used,
mainly with a utilitarian purpose to equip private dwellings, hotels,
theatres, cinemas, offices, churches, schools, cafes, restaurants,
laboratories, hospitals, dentists\' surgeries, etc. or ships, aircraft,
railway coaches, motor vehicles, caravan-trailers or similar means of
transport. (It should be noted that, for the purposes of this Chapter,
articles are considered to be "movable" furniture even if they are
designed for bolting, etc. to the floor, e.g. chairs for use on ships).
Similar articles (seats, chairs, etc.) for use in gardens, squares,
promenades, etc. are also included in this category.

In the instant case, the crib bumper and padded headboard are not
"ejusdem generis" or "of the same kind" of merchandise as the items
listed in heading 9403 and/or the furniture and parts referred to in the
EN. None of the exemplars are soft or stuffed items like the subject
merchandise. The exemplars are predominantly composed of wood, metal or
other rigid material. Nor do any of the exemplars serve a protective
function as do the crib bumper and padded headboard. Accordingly, the
crib bumper pad and padded headboard are not properly classifiable under
heading 9403.

In [Bauerhin Technologies Limited Partnership v. U.S.]{.underline}, 110
F.3d 774, 1997 U.S. App. LEXIS 6214, (CAFC 1997), the Court addressed
the issue of whether or not a canopy designed to fit over a child
automobile safety seat which was imported separately and sold as part of
the seat to which it was attached was a "part" of the child safety seat
for classification purposes. The Court held that because the canopy was
dedicated for use with the car seat it was properly considered a "part"
under the HTSUSA and therefore classifiable in subheading 9403.90.8080,
HTSUSA, which provides for other furniture and parts thereof: parts;
other: other, other.

Notably, in [Bauerhin]{.underline} the canopies that were classified as
**parts** of car seats were specially designed to fit over child
automobile safety seats. **\[Emphasis added\]**. Although the canopies
were imported separately from the seats with which they were to be used,
they were sold as parts of the seats to which they were to be attached.
In contrast, the crib bumper and padded headboard in the instant case
are not sold as parts of the cribs to which they attach. The bumper and
padded headboard are optional items and are sold separately as part of a
five piece **bedding** set. **\[Emphasis added\]** While the canopy
discussed in [Bauerhin]{.underline} is designed to fit a particular car
seat, the bumper pad and headboard could be used with any crib. Thus the
[Bauerhin]{.underline} rationale does not extend to the instant
merchandise.

This office has followed [Bauerhin]{.underline} in select cases where
the merchandise either had rigid parts making it similar to the
exemplars listed in heading 9403 or where the merchandise was designed,
marketed and sold to be attached to a particular piece of furniture or
equipment. See HQ 959262, May 6, 1997 ("Cozy Crib Tent" given shape by
the support of fiberglass rods classified in heading 9403); HQ 960933
and HQ 960934, both dated September 30, 1997 (concerning crib tents with
fiberglass rods and metal attachments); HQ 088553, dated November 6,
1991; HQ 087844, dated November 30, 1990 (Cozy Crib tents with frame of
fiberglass rods with metal attachments classified in 9403). The crib
bumper and padded headboard are distinguishable from the crib tents in
that they contain no rigid supports or parts. Nor are the crib bumper
and padded headboard dedicated solely for use with a particular crib.
See HQ 962186, June 1, 1999 (Mosquito netting designed to fit over a
specific "Pack-N-Play" model play pen classified in heading 9403).

Heading 6307, HTSUSA, is a residual provision which provides for other
made up articles of textiles. Section Note 7 (e) of Section XI, which
covers textiles and textile articles states in pertinent part as
follows:

7\. For the purposes of this Section the expression "made up" means:

Assembled by sewing.....

The instant article has been assembled by sewing, therefore it
constitutes a made up textile article. The Explanatory Notes state
regarding Heading 6307:

> This heading covers made up articles of any textile material which are
> **not included** more specifically in the heading of Section XI or
> elsewhere in the Nomenclature.

Since the padded headboard and crib bumper at issue are not covered by
any more specific heading, they are classifiable in Heading 6307,
HTSUSA.

Customs has consistently classified merchandise that is almost identical
to the subject merchandise under heading 6307. See HQ 965008, dated
August 27, 2001; HQ 961391, dated April 19, 1998; HQ 959347, dated July
18, 1996; NY G87894, dated March 26, 2001; NY G85992, January 11, 2001;
NY 807912, dated May 29, 1995; NY 885602, May 10, 1993; NY 851101, dated
April 25, 1990.

HOLDING:

The bumper pad and soft padded headboard made from 100 percent cotton
woven fabric are properly classified in subheading 6307.90.9889, HTSUSA,
which provides for "Other made up articles, including dress patterns;
Other; Other: Other: Other: Other." The general column one rate of duty
is 7 percent *ad valorem*. There is no textile quota category applicable
to this provision.

Due to the changeable nature of the statistical annotation (the ninth
and tenth digits of the classification) and the restraint (quota/visa)
categories, you 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