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HQ 957767



August 30, 1995

CLA-2 R:C:T 957767 jb

CATEGORY: CLASSIFICATION

TARIFF NO.: 6307.90.9989

Barbara Boyd
Design Salt North America
P.O. Box 1220
Redway, CA. 95560

RE: Request for reconsideration of DD 801305; Double TravelSheet sleeping bag liner; United States v. Carborundum

Dear Ms. Boyd:

This is in reference to our letter of July 13, 1995, informing you of the proposed revocation of District ruling (DD) 801305, dated September 6, 1994, and Headquarter ruling (HQ) 956038, dated June 22, 1994, concerning the classification of a travel sheet and double travel sheet, respectively. In our letter of July 13, 1995, you were advised that we were reviewing DD 801305 and HQ 956038 for possible revocation. Upon further consideration of the matter, we have decided to withdraw our proposal of revocation and affirm DD 801305 and HQ 956038. Furthermore, additional rulings which were found to be in error, namely, HQ 088149, dated December 27, 1991, HQ 089137, dated August 6, 1991 (affirming the determination in HQ 088149), and HQ 089134, dated August 8, 1991, will be revoked to reflect proper classification of the merchandise.

FACTS:

The merchandise in question consists of a Double TravelSheet measuring 70 inches by 86 inches, stated to be specifically designed for use as a liner/insert for sleeping bags. It opens on one side, has a Velcro closure, and features a pocket for a pillow insert. You state that the Double TravelSheet is designed specifically to add warmth, comfort and longevity to the sleeping bag used by backpackers and campers, and may be used as a replacement for sleeping bags during warm weather camping. It is made of either 100 percent cotton, 100 percent silk, 100 percent cotton flannel or a 65 percent polyester/35 percent cotton blend fabric.

In both DD 801305 and HQ 956038, the merchandise was classified in heading 6307, HTSUSA, in the provision for other made up articles. ISSUE:

Whether the sleeping bag liner is properly classified in the appropriate provision in heading 6306, HTSUSA, heading 6302, HTSUSA, or in heading 6307, HTSUSA?

LAW AND ANALYSIS:

Classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes, taken in order. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI.

The three plausible classification determinations for this type of merchandise are headings 6306, 6302 and 6307, HTSUSA. As we stated in HQ 089137, classification within heading 6306, HTSUSA, in the provision for camping goods is not feasible:

Sleeping bags are specifically excluded from the notes of this heading. Moreover, the goods of the heading encompass items that are made of very strong and sturdy materials suitable for use out of doors. Examples provided by the Explanatory Notes include canvas buckets, wash basins, ground-sheets (which are usually waterproof to prevent ground moisture from seeping through to sleeping bags), and pneumatic mattresses and hammocks.

You state that the above rationale was inaccurate, since (1) only padded sleeping bags are specifically excluded; and (2) the "strong and sturdy materials" language is not a necessary requirement. You cite as examples mosquito netting and light weight tents. We agree in part.

You are correct in claiming that only padded sleeping bags are specifically excluded from the camping goods heading into the internally stuffed goods heading. We also agree that the "strong and sturdy materials" language is not a litmus test for prima facie classification of any merchandise in heading 6306, HTSUSA; however, "strong and sturdy materials" ARE required for construction of sleeping bags (padded or without padding) and articles intended for use similar thereto.

Heading 6302, HTSUSA, provides for bed linen, table linen, toilet linen and kitchen linen. The Explanatory Notes to the Harmonized Commodity Description and Coding System (EN) to heading 6302, HTSUSA, state:

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:

1) Bed linen, e.g., sheets, pillow cases, bolster cases, eiderdown cases and mattress covers

In support of your claim that the sleeping bag liners are very specialized products, you submitted material illustrating that the sleeping bag liners are used in conjunction with sleeping bags and sold exclusively by camping goods catalogues, travel accessory catalogues and sporting goods retailers. Furthermore, you show:

1. the liners are being tested for their temperature rating by Recreational Equipment Inc., in the state of Washington, so that the consumer can customize the liner for his/her specific need;

2. a dealer's list of retail stores that currently carry the bag liners;

3. tear sheets of current catalogues;

4. numerous articles written about the bag liners by product editors of top selling outdoor magazines.

In United States v. Carborundum Co., 63 CCPA 98, C.A.D. 1172, 536 F.2d 373 (CAFC) Cert. den., Carborundum Co. v. United States, 429 U.S. 979 (1976), the appeals court established criteria to be applied to determine in which class or kind of goods an imported article belongs. These criteria are:

1. general physical characteristics of the merchandise;

2. expectations of the ultimate purchaser;

3. channels, class or kind of trade in which the merchandise moves;

4. environment of the sale and the manner in which the merchandise is advertised and displayed;

5. the use, if any, in the same manner as merchandise which defines the class;

6. economic practicality of so using the import; and 7. recognition in the trade of this use.

The literature discussing the sleeping bag liners states:

Over the last few years a system of modular sleeping bags (or modular sleep systems) has been developed... Similar to the concept of layered clothing for outdoor activities where multiple layers of clothes help to adjust to changing temperatures (rather than one heavy coat), sleeping bags are used with inserts (liners) or overbags to adjust to different climatic conditions. Rather than having a summer sleeping bag and a winter sleeping bag, one uses a summer bag when it's warm and the summer bag with a liner when its colder. When it gets really warm a liner alone will do. The idea is to optimize packing weight and comfort and to save money.

Sleeping Bag Liners are used as inserts in modular sleep systems. They add insulation, keep the bag clean and provide a more comfortable sleep environment than the actual bag. Sleeping bag liners come in two basic cuts (rectangular for rectangular shaped sleeping bags and tapered for mummy shaped sleeping bags) and in a wide range of materials.

Additionally, addressing the fabric content of the sleeping bag liners, you state that presently the liners come in natural fibers such as cotton, cotton flannel and silk, but in the future, production will include a variety of "high tech fabrics" not currently on the market; namely, polypropylene, polyester pile (fleece), and nylon taffeta (ceramic coated heat retention fabric). The diversity of fabrics will allow the consumer to customize the liner to his/her need, that is, in regard to the particular cold weather or warm weather activity.

It is the opinion of this office that the material you have submitted proves conclusively that your company, Design Salt Liners, manufactures liners directed exclusively for the outdoor industry. Point for point, as expressed by the court in Carborundum, you have shown that the appearance of the merchandise, the expectations of the purchaser and the trade, as well as the merchandising and use of the sleeping bag liners is directed to outdoor recreational activities. The liners are sold through outdoor stores and catalogues for outdoor equipment and are advertized by leading outdoor and backpacking magazines. Additional material illustrates how the liners are designed to fit tapered or rectangular sleeping bags. The dimension, depth and side of the opening, the shape and even the color are in keeping with the most popular sleeping bags on the market.

Accordingly, it would be erroneous to state that this merchandise is classifiable in heading 6302, HTSUSA, as bed linen. Although the submitted merchandise, it may be stated, might appear to be bed linen, its intended use and marketing does not support such a finding.

Heading 6307, HTSUSA, provides for other made up articles. This heading is a "basket provision" for goods which cannot be classified more specifically in the nomenclature. As no other provision more specifically describes the submitted merchandise, the sleeping bag liners are properly classified as other made up articles.

HOLDING:

The merchandise at issue, the Double TravelSheet, is classified in subheading 6307.90.9989, HTSUSA, which provides for other made up articles, including dress patterns: other: other: other: other: other. The applicable rate of duty is 7 percent ad valorem. DD 801305 and HQ 956038 are affirmed.

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

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