HQ 956409

December 22, 1994

CLA-2 CO:R:C:T 956409 GG

CATEGORY: Classification

TARIFF NO.: 9404.90.8040

Peter J. Allen, Esq.

Neville, Peterson & Williams

80 Broad Street

Suite 3400

New York, New York 10004

RE: Classification of Featherbeds

Dear Mr. Allen:

This is in response to your May 9, 1994, request for a

reconsideration of New York Ruling Letter (NY) 895597, dated

March 31, 1994. The additional information contained in your

supplemental submission dated November 10, 1994, has been

incorporated into this file. The issue involves the

classification of featherbeds. Your client is Natural Feather

and Textiles, Inc. The sample is being returned to you under

separate cover.

FACTS:

The merchandise is a \"Naturelle\" Baffle Box Featherbed. The

featherbed features a 100 percent woven cotton inner shell

constructed with interior baffles and stuffed with a blend of

feathers. The outer shell is also of 100 percent woven cotton

and has box-edge styling and piping measuring less than 6.35 mm

around the edges. The featherbed is available in several sizes

corresponding to standard bed size measurements. The submitted

sample is approximately two inches deep.

The cost of the feather fill and the cost of the cotton

shell are roughly comparable. The percentage of total material

cost attributable to the feather fill increases slightly with the

size of the featherbed.

The featherbed was classified in NY 895597 as an other

article of bedding of cotton under subheading 9404.90.8040 of the

Harmonized Tariff Schedule of the United States (HTSUSA). The

importer claims that the correct classification is as a mattress

of cotton under subheading 9404.29.1000, HTSUSA.

ISSUE:

How is the featherbed properly classified?

LAW AND ANALYSIS:

Articles are classified under the HTSUSA in accordance with

the General Rules of Interpretation (GRI\'s). GRI 1 provides that

classification shall be according to the terms of the headings

and any relative section or chapter notes. Merchandise that

cannot be classified in accordance with GRI 1 is to be classified

in accordance with the remaining GRI\'s, taken in order.

There is agreement that featherbeds fall within the scope of

heading 9404, HTSUSA. This heading 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.

Once a heading is determined to be applicable, classification

must then be made at the appropriate subheading level.

GRI 6 provides that, for legal purposes, classification in

the subheadings of a heading is determined in accordance with the

terms of the subheadings and any related subheading notes and in

accordance with the preceding rules (GRI\'s). Only subheadings at

the same level are comparable. Thus, GRI 6 applies GRI\'s 1

through 5 in classifying goods at the subheading level. In

addition, in application of GRI 6, classification must be

effected at the six-digit level before proceeding to the eight-

digit level.

\"Featherbeds\" are not specifically provided for either at

the heading or subheading level. However, the importer contends

that they fall under the common meaning of the term \"mattress\".

Mattresses of materials other than cellular rubber or plastics,

whether or not covered, are described eo nomine in subheading

9404.29, HTSUSA. The National Import Specialist disagrees with

the categorization of the featherbed as a mattress, arguing

instead that it is marketed and used as an adjunct to a mattress,

and thus, is an other article of bedding under subheading

9404.90, HTSUSA.

In support of its position that a featherbed is a mattress,

the importer cites to a dictionary definition of the term.

Webster\'s Ninth New Collegiate Dictionary, (1983), defines

mattresses as \"a fabric case filled with resilient material (as

cotton, hair, feathers, foam rubber, or an arrangement of coiled

springs) used either alone as a bed or on a bedstead\". While we

agree that the featherbed meets part of this definition in that

it is a fabric case filled with feathers, in our opinion the

featherbed lacks the bulk and degree of firmness necessary for it

to be used either alone as a bed or on a bedstead. We note that

small hard objects, such as a pen, that are placed underneath the

featherbed are easily detected when moderate pressure is applied.

Hence it is inconceivable that the featherbed could be placed by

itself on a box spring or on a bed with wooden slats. And,

despite assertions to the contrary, it is unlikely that the

featherbed would provide a comfortable sleeping surface if used

without other padding on a platform bed. Thus, while its

function or use is similar to that of a mattress, i.e., to

provide comfort and support to the sleeper, the featherbed in

question does not rise to the level of a mattress.

Counsel compares its featherbed to the bassinet pad

classified in Headquarters Ruling Letter (HRL) 952653, dated

December 31, 1992. In that case, a bassinet pad that had a

hardwood base and was \"used by babies as a bed\", was found to be

a mattress under subheading 9404.29.9000, HTSUSA. However, a

distinction can be drawn between the bassinet pad and the

featherbed, because the bassinet pad, unlike the featherbed, had

the requisite bulk and degree of firmness to be used alone as a

bed.

The featherbed at issue appears to resemble the sheepskin

mattress pads that were classified in NY 881135, dated December

23, 1992. Those pads had an upper surface of knit pile wool

fabric, an underside of 100% cotton woven fabric, and were

stuffed with a wool filler. They were classified as other items

of bedding under subheading 9404.90.9060, HTSUSA. Although we

are of the opinion that both the sheepskin mattress pads and the

featherbeds currently under consideration are correctly

classified under subheading 9404.90, HTSUSA, we do not agree with

their designation in both NY 881135 and NY 895597 as \"mattress

pads\". The chief purpose of mattress pads is to protect the

underlying mattress. In contrast, featherbeds, and we hazard,

the sheepskin \"mattress pads\", are designed to cushion the

sleeper. Indeed, the advertising material for featherbeds

reveals that special featherbed protectors are available for

sale. Therefore, describing the featherbeds as \"mattress pads\"

in NY 895597 was incorrect. New York Customs acknowledges this

error, and suggests that the featherbeds should be generically

labeled \"mattress toppers\". However, despite the misnomer, the

featherbeds were nonetheless correctly classified at the six-

digit level in NY 895597 as other items of bedding under

subheading 9404.90, HTSUSA.

Subheading 9404.90.80, HTSUSA, covers other articles of

bedding of cotton, not containing any embroidery, lace, braid,

edging, trimming, piping exceeding 6.35 mm or applique work. At

first glance, the featherbed at issue would appear to fall under

this provision, because the interior and exterior shells are of

100 percent woven cotton, and the piping measures less then 6.35

mm\. However, the featherbed also contains an inner filling of

feathers. Subheading 9404.90.90, HTSUSA, provides for other

articles of bedding of other materials, and therefore, the

featherbed also meets the terms of that subheading.

GRI 2(b) directs that goods consisting of more than one

material or substance are to be classified according to the

principles of GRI 3. GRI 3(a) provides, in pertinent part, that

when two or more headings refer to part only of the materials or

substances in a composite good, the headings are to be considered

equally specific. This is the case here, at the subheading

level, therefore GRI 3(a) is not applicable.

GRI 3(b) provides that mixtures and composite goods

consisting of different materials or made up of different

components, shall be classified as if they consisted of the

material or component which gives them their essential character.

In previous rulings, Customs has determined that the outer shell

or covering of certain bedding articles and similar furnishings

falling under heading 9404 imparts the essential character. See

HRL 952479, dated January 4, 1993 \[baby seat cushion\]; HRL

951526, dated August 14, 1992 \[infant seat cushion\]. More

recently, in Treasury Decision (T.D.) 94-25, Customs modified

this long-held position in situations involving down comforters,

by determining that the down filling in comforters with cotton

outer shells imparted the comforters\' essential character,

primarily for the reasons that down has unique insulating

qualities and high costs. T.D. 94-25 does not apply here,

however, because the filler used in the featherbeds is feathers,

not down, and the decision is restricted to down. Even if we

were to employ the rationale used in T.D. 94-25, however, the

lower cost and warming property of feathers as opposed to down

would mandate adherence to the traditional view that the outer

cotton shell imparts essential character. We note that the costs

of the featherbed\'s feather fill and shell are roughly on par.

By providing the featherbed\'s distinctive appearance and shape

and protecting the user from quills, the cotton shell represents

essential character.

HOLDING:

The featherbed is classifiable under subheading

9404.90.8040, HTSUSA, as a mattress support; article 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 applique work: Other. It

is dutiable at a rate of 5% ad valorem, and is subject to textile

quota category 369.

The classification remains unchanged from that arrived at in

NY 895597, which is the ruling currently being reconsidered.

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 ar the result of international bilateral

agreements which are the subject of frequent negotiations and

changes, to obtain the most current information available, we

suggest you check, close to the time of shipment, the Status

Report 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, you should contact the local

Customs office prior to importing the merchandise to determine

the current status of any import restraints or requirements.

Sincerely,

John Durant

Director, Commercial

Rulings Division