Revocation of NY N012720, NY H81550, NY F84497, NY C89291, NY 817811, HQ 950620, HQ 089134, HQ 089137, and HQ 088149; tariff classification of sleep sacks

HQ H243928 June 22, 2017 CLA-2 OT:RR:CTF:TCM H243928 PJG CATEGORY: Classification TARIFF NO.: 6307.90.98 Mr. Hans Wurian Design Salt P.O. Box 751 Redway, California 95560 RE: Revocation of NY N012720, NY H81550, NY F84497, NY C89291, NY 817811, HQ 950620, HQ 089134, HQ 089137, and HQ 088149; tariff classification of sleep sacks Dear Mr. Wurian: This letter is to inform you that U.S. Customs and Border Protection (“CBP”) has reconsidered three Headquarters Ruling Letters (“HQ”), specifically, HQ 088149, dated December 27, 1990, HQ 089134, dated August 8, 1991, and HQ 950620, dated February 20, 1992, issued to you on behalf of Design Salt. We have also reconsidered HQ 089137, dated August 6, 1991, issued to Bellsey and Baker. All four rulings pertain to the tariff classification under the Harmonized Tariff Schedule of the United States (“HTSUS”) of the COCOON TravelSheet 100 percent woven cotton sleep sacks. We have since reviewed these rulings and determined them to be in error. Accordingly, HQ 088149, HQ 089137, HQ 089134, and HQ 950620 are revoked. CBP has also reviewed New York Ruling Letters (“NY”) NY 817811, dated January 25, 1996, NY C89291, dated July 16, 1998, NY F84497, dated March 31, 2000, NY H81550, dated June 26, 2001, and N012720, dated June 22, 2007, which concern the tariff classification of substantially similar sleep sacks, and has determined them to be in error as well. Accordingly, NY 817811, NY C89291, NY F84497, NY H81550, and N012720 are also revoked. Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. § 1625(c)(1)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. No. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed action was published on April 12, 2017, in Volume 51, Number 15, of the Customs Bulletin. No comments were received in response to this notice. FACTS: In both HQ 088149 and HQ 089137 (which affirmed HQ 088149), the sleep sack was described as follows: The merchandise at issue is a 100 percent woven cotton sleeping sack, to be imported from China. It measures 33 x 86 inches and is sewn together on three sides. One end of the sack has an 11 1/2 inch pocket which is formed by a folded length of material sewn on its sides, which can be used to accommodate the insertion of a pillow. The portion of the top sheet near the pillow insert is not sewn down, forming a flap which allows a person to easily slip into and out of the sleep sack.The literature accompanying your request states that this item is called a COCOON TRAVELSHEET. It is advertised as a "washable sleeping environment" to be used in hotels, hostels, hammocks, and homes. In your letter you indicate that the sleeping sack is intended to serve as a sleeping bag for travellers in warm countries. "COCOON" is available in three printed fabric styles. In the Sales Facts sheet that you submitted to us along with a letter dated July 31, 1995, you describe the TravelSheet as a “[s]leeping bag liner” and a “stand alone product in warmer climates.” On your website, you explain that the “TravelSheet is an extremely lightweight and roomy sleep sack or sleeping bag liner for hotels, youth hostels, alpine huts, boats, planes and trains. TravelSheets are also used as warm weather sleeping bags and guestsheets.” In both HQ 088149 and HQ 089137, CBP classified the sleep sack in heading 6302, HTSUS, which provides for “Bed linen, table linen, toilet linen and kitchen linen.” ISSUE: Whether the subject sleep sacks are classifiable in heading 6302, as bed linen, or in heading 6307, HTSUS, as other made up articles. 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 GRIs may then be applied. The 2017 HTSUS provisions under consideration are as follows: 6302 Bed linen, table linen, toilet linen and kitchen linen: * * * 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 at the international level. While neither 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, 35128 (August 23, 1989). The EN to 63.02 states, in pertinent part: These articles are usually made of cotton or flax, but sometimes also of hemp, ramie or manmade 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 63.07 states, in pertinent part : 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. As to the issue of whether the subject merchandise is a “bed linen,” we note that neither the relevant legal text of the HTSUS nor EN 63.02 define the term “bed linen,” therefore, we are permitted to consult dictionaries and other reliable sources to determine its common meaning. See C.J. Tower & Sons of Buffalo, Inc. v. United States, 673 F.2d 1268, 1271 (C.C.P.A. 1982) (citing Optical Glass, Inc. v. United States, 612 F.2d 1283 (C.C.P.A. 1979)). The Oxford English Dictionary defines “bed linen” as “[b]ed-clothes, esp. sheets and pillow-cases, originally of linen.” Id. (Oxford University Press 2012) available at www.oed.com. The dictionary defines “bed-clothes” as “[t]he sheets and blankets with which a bed is covered.” Id. (Oxford University Press 2016) available at www.oed.com. The tariff term “bed linens” in heading 6302, HTSUS, includes “specialized items … which are only found on ‘some’ beds.” See Medline Indus. v. United States, 62 F.3d 1407, 1409 (Fed. Cir. 1995) (the court held that drawsheets, which are “used primarily by hospitals and other health care providers to lift, roll, or slide incapacitated patients and to protect undersheets and mattresses from soiling” are classified in heading 6302, HTSUS). The court referred to the definition of “bed linen” in the Webster's Third New International Dictionary 196 (1981), which defined the term as “‘linen or cotton articles for a bed; esp.: sheets and pillow cases’" and also referenced the broad language of the Explanatory Notes for heading 6302, HTSUS, which also included bolster cases and mattress covers as examples of bed linen. Id. The court concluded that “[n]either the statute nor the sources cited above limit the definition of ‘bed linens’ to only ‘those items found on all beds.’ The definition of bed linens includes at least linen, cotton or other fabric articles for a bed.” Id. The term “bed” is defined by the Oxford English Dictionary as “[t]he sleeping-place of a person or animal.” The Oxford English Dictionary further provides that a bed is “[a] permanent structure or arrangement for sleeping on, or for the sake of rest.” Id. (Oxford University Press 2016) available at www.oed.com. Your description of the subject merchandise and your website suggest that it is designed and marketed primarily for use during travel, such as in a hammock, sleeping bag or independently, rather than on a “permanent structure or arrangement” as a bed linen. Therefore, we find that the COCOON TravelSheet described in HQ 088149, HQ 089137, HQ 089134, and HQ 950620 is not classifiable as bed linens in heading 6302, HTSUS. Similarly, the sleep sacks described in NY N012720, NY H81550, NY F84497, NY C89291, and NY 817811, are not classifiable as bed linens in heading 6302, HTSUS, because they are certainly not “found on all beds,” nor can they be described as “specialized items … which are only found on ‘some’ beds.” See Medline, 62 F.3d at 1409. Instead, they are designed to travel with the consumer and be used either on a bed, alone, or as a sleeping bag liner. Indeed, some of the sleep sacks are imported with a carrying pouch for easier travel. Moreover, unlike the drawsheets in Medline, the sleep sacks are used to protect the consumer from the undersheets and mattresses, rather than to protect the undersheets and mattresses from the consumer. In other words, they are not “bed-clothes” designed to cover the bed, rather they are designed to protect the consumer. Id. (Oxford University Press 2016) available at www.oed.com. Since the sleep sacks are not classifiable more specifically in any other heading, we find that they are classifiable in heading 6307, HTSUS, as “Other made up articles, including dress patterns” and specifically under subheading 6307.90.98, HTSUS, which provides for “Other made up articles, including dress patterns: Other: Other: Other.” HOLDING: Under the authority of GRIs 1 and 6 the sleep sacks are classified in heading 6307, HTSUS, specifically in subheading 6307.90.98, HTSUS, which provides for “Other made up articles, including dress patterns: Other: Other: Other.” The 2017 column one, general rate of duty is 7 percent 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 the internet at www.usitc.gov/tata/hts/. EFFECT ON OTHER RULINGS: NY N012720, dated June 22, 2007, NY H81550, dated June 26, 2001, NY F84497, dated March 31, 2000, NY C89291, dated July 16, 1998, NY 817811, dated January 25, 1996, HQ 950620, dated February 20, 1992, HQ 089134, dated August 8, 1991, HQ 089137, dated August 6, 1991, and HQ 088149, dated December 27, 1990, are hereby revoked. In accordance with 19 U.S.C. § 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin. Sincerely, Myles B. Harmon, Director Commercial and Trade Facilitation Division