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HQ 960478

August 19, 1997

CLA-2 RR:TC:TE 960478 CAB


TARIFF NO.: 9404.90.8040

Melvin E. Lazar, Esq.
Soller, Shayne & Horn
46 Trinity Place
New York, NY 10006

RE: Classification of a used featherbeds; Heading 9404

Dear Mr. Lazar:

This is in response to your inquiry of March 31, 1997, requesting a tariff classification ruling on behalf of your client, Williamsburg Feathers Co. Inc., pursuant to the Harmonized
Tariff Schedule of the United States Annotated (HTSUSA), for used featherbeds. Samples were not submitted to Customs Headquarters for examination, however, in July 1996, the subject featherbeds were examined by Customs in Newark, New Jersey.


The featherbeds at issue are large rectangular fabric cases loosely filled with feathers. The featherbeds are designed to be placed on top of a mattress to provide extra comfort. The feathers are capable of shifting since there are no internal baffles or quilt stitching to hold the feathers in place. The examined samples show use and exhibit wear on the outer surface of the featherbed shell.

You state that the importer imports used feathers which at the time of importation are contained in used bedding. However, subsequent to importation into the United States, the feathers are removed from the shell, repackaged, and are sold to various wholesalers and jobbers as "used feathers". The used outer shell is destroyed and does not enter commerce for resale.


Whether the subject featherbeds are classifiable under Heading 9404, HTSUSA, or Heading 0505, HTSUSA, or Heading 6701, HTSUSA?


Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that classification shall be determined 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 subsequent GRI's taken in order.

There are three competing headings in this case. Heading 9404, HTSUSA, is the provision for articles of bedding. Heading 0505, HTSUSA, is the provision for feathers not further worked than cleaned, disinfected or treated for preservation. Heading 6701, HTSUSA, provides for feathers other than goods of heading 0505.

You assert that you are importing feathers and not featherbeds and the outer shell is only a simple and inexpensive method to contain and convey the feathers, and is therefore, classifiable under Heading 0505, HTSUSA, and alternatively, Heading 6701, HTSUSA. You specifically state:

This merchandise is imported solely for the feathers themselves, for the used bedding serve as packing containers. The intended and actual use of these feathers in a very different channel of trade, is what should determine their classification as feathers, rather than the very transient condition in which they are imported.

It is a long standing tenet of Customs law that goods are classified under the tariff in their condition as imported. See, United States v. Citroen, 223 U.S. 407 (1911). In this instance, featherbeds, although used and worn, are imported into the United States, instead of just feathers being imported in the United States. The legislature specifically provided for the tariff classification of featherbeds under Heading 9404, HTSUSA. Heading 9404, HTSUSA, is an eo nomine provision with no limiting language regarding use. "An eo nomine statutory designation of an article, without limitations or a shown contrary legislative intent, judicial decision, or administrative practice to the contrary, and without proof of commercial designation, will include all forms of said article." Nootka Packing Co.v United States, 22 CCPA 464, 470, T.D. 47464 (1935).

You argue that Customs has on occasion departed from the "condition as imported" criteria, and has looked beyond the character of the article at the time of importation. You specifically refer to Headquarters Ruling Letter (HQ) 089090, dated July 10, 1991. In this case, we agree with you, Customs did take into consideration the use of the article therein in HQ 089090. You cite the following from United States v. Citroen at pp. 414-15

First. The rule is well established that in order to produce uniformity in the imposition of duties, the dutiable classification of articles imported must be ascertained by an examination of the imported article itself, in the condition in which it is imported."

This, of course, does not mean that a prescribed rate of duty can be escaped by resort to disguise or artifice. When it is found that the article imported is in fact the article described in a particular paragraph of the tariff act, an effort to make it appear otherwise is simply a fraud on the revenue, and cannot be permitted to succeed.

Customs, in HQ 089090, classified a feather duster under Heading 0505, HTSUSA, the provision for feathers, instead of the claimed Heading 9607, HTSUSA, the provision for feather dusters. In HQ 089090, Customs noted that there was a belief that the importer was attempting to disguise the articles as feather dusters in order to circumvent the Comprehensive Anti-Apartheid Act of 1986 which prohibited the importation of agricultural products from South Africa. Factoring in the language espoused in United States v. Citroen, Customs stated the following:

We recognize that in the absence of deception, disguise, or artifice resorted to for the purpose of perpetuating a fraud upon the revenue, imported merchandise must be classified in its condition as imported, and that disassembly after importation is not relevant for classification purposes. Nonetheless, in light of counsel's submission regarding the use being made of the alleged feather dusters, we are of the opinion that the proffered classification of the merchandise as feather dusters may well amount to an attempt to circumvent specific prohibitions established by Congress.

In essence, as was maintained in United States v. Citroen, Customs may look beyond the "condition as imported" rationale if there is reason to believe that the importer is attempting to circumvent prescribed tariff duties by resorting to illegal methods. In this case, a featherbed is being imported, and there is a specific applicable heading for featherbeds. There is no need for Customs to look beyond the "condition as imported" rationale since there is no objective basis to believe that an attempt is being made to circumvent Customs regulations, as opposed to the case in HQ 089090.

You also refer to Rico Import Co. v. United States, Court of Appeals Federal Circuit, 12 F.3d 1088 (1993), where the court concluded that certain imported tubes of vegetable products, made into reeds for musical instruments, were classifiable as other vegetable products under Heading 1404, HTSUSA. In the case therein, Customs argued unsuccessfully that the articles were classifiable under Heading 1401, HTSUSA, the provision for vegetable materials of a kind used primarily for plaiting (for example, bamboos, rattans, reeds, rushes, osier, raffia, cleaned, bleached, or dyed cereal straw and lime bark). The court concluded, "The tubes are not suitable for plaiting, and are not in fact plaited. Rico imports tubes used to make musical instruments, not plaiting materials. The obvious conclusion is that the plain language of subheading 1401.90.40, HTSUS, excludes Rico's goods. The court in Rico was evaluating Heading 1401, HTSUSA, which is a use provision and not an eo nomine provision as in this case. Consequently, the plaintiff was able to prove with objective evidence that the article therein was not being used in the manner which would dictate classification under Heading 1401, HTSUSA. Moreover, merely by looking at the specific wording of Heading 1401, HTSUSA, the court was able to determine that the article therein was specifically excluded from the heading. This is not the case in this instance. In this fact scenario, you have an article that is specifically provided for under a particular heading with no exclusionary language present that would limit its classification under that particular heading.

You refer to the recent decision in Western States Import Co. Inc. v. United States, Slip Op. 96-96, (Decided June 14, 1996), for the proposition that in some cases, the courts have looked to an article's post importation use to determine the proper tariff classification of the article at the time of importation. Customs is of the belief that the primary issue in Western States was the court's legal interpretation of the words in the tariff provision, "not designed for use with tires...." Since those words, or similar language, are not contained in any of the provisions being considered, the decision in Western States is not pertinent to the classification of the instant goods.

You cite several other cases to support your conclusion that use of an imported article is important in determining whether the article is within the scope of an eo nomine provision. Customs is not persuaded by your argument that use of the subject featherbed should be factored in when determining whether it fits within the scope of the eo nomine provision featherbeds under Heading 9404, HTSUSA. Neither you, nor our own research has provided us with persuasive evidence that the use of the bedding after importation should have any bearing on the tariff classification at the time of importation. The subject articles are featherbeds, and though used and worn, they remain featherbeds. Though you contend that the merchandise is being used solely for the feather interior, it is still capable of being used as bedding. There is nothing in the tariff, such as restrictive language from Congress, or the judiciary, that would require Customs to classify the subject articles as anything other than as bedding of Heading 9404, HTSUSA. See, HQ 951326, dated May 29, 1992, where Customs concluded that used lead batteries that were being imported for the recovery of the metal were classified as batteries and not as lead waste and scrap; See also, HQ 956409, dated December 22, 1994, where Customs classified a featherbed in subheading 9404.90.80. Accordingly, the imported goods are classifiable under Heading 9404, HTSUSA, as bedding, and not under either Headings 0505 or 6701, HTSUSA, as feathers.


Customs has not been provided with the exact fiber content of the subject featherbeds. Consequently, if the subject featherbeds are of cotton and do not contain any embroidery, lace, braid, etc., they are classifiable in subheading 9404.90.8040, HTSUSA, which is the provision for other pillows, cushions and similar furnishings; of cotton; other; other of cotton, not containing any embroidery, lace, braid, edging, trimming, piping exceeding 6.35 mm or applique work. The applicable rate of duty is 4.8 percent ad valorem and the textile restraint category is 369. If the fiber content of the featherbeds is other than cotton and/or if they contain any embroidery, lace, braid, edging, trimming, piping exceeding 6.35 mm or applique work, the subheading would change.

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 are the result of international bilateral agreements which are subject to frequent renegotiations and changes, to obtain the most current information available, we suggest that you check, close to the time of shipment, the Status Report on Current Import Quotas (Restraint Levels), an internal issuance of the U.S. Customs Service, which is available for inspection at your 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 applicable to textile merchandise, you should contact your local Customs office prior to importing the merchandise to determine the current status of any import restraints or requirements.


John Durant, Director
Tariff Classification Appeals

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