us-cbp-cross-rulings-hq-083300•HQ 083300: Application for Further Review of Protest No. 3801-7-001979, dated October 26, 1987, filed by Trans-Border Customs Service, on behalf of Obus Forme Ltd., protesting your decision in the liquidation on July 31, 1987 of entry number 702-0006280, dated May 22, 1987, covering a shipment of backrest products imported from Canada.
HQ 083300: Application for Further Review of Protest No. 3801-7-001979, dated October 26, 1987, filed by Trans-Border Customs Service, on behalf of Obus Forme Ltd., protesting your decision in the liquidation on July 31, 1987 of entry number 702-0006280, dated May 22, 1987, covering a shipment of backrest products imported from Canada.
us-cbp-cross-rulings-hq-083300HQ 083300: Application for Further Review of Protest No. 3801-7-001979, dated October 26, 1987, filed by Trans-Border Customs Service, on behalf of Obus Forme Ltd., protesting your decision in the liquidation on July 31, 1987 of entry number 702-0006280, dated May 22, 1987, covering a shipment of backrest products imported from Canada.Guidance
Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.
HQ 083300
May 17, 1989
CLA-2 CO:R:C:G 083300 LS
CATEGORY: Classification
TARIFF NO.: 727.86, 367.63
District Director of Customs
477 Michigan Ave., Second Floor
Detroit, Michigan 48226
RE: Application for Further Review of Protest No. 3801-7-001979,
dated October 26, 1987, filed by Trans-Border Customs
Service, on behalf of Obus Forme Ltd., protesting your
decision in the liquidation on July 31, 1987 of entry
number 702-0006280, dated May 22, 1987, covering a shipment
of backrest products imported from Canada.
Dear Sir:
This is our decision on the above-referenced Application
for Further Review of Protest, which you forwarded to our office
by a memorandum dated April 14, 1988.
FACTS:
The five categories of products which are the subject of
this protest are: a low backrest or back support; a high
backrest or back support; a seat; a lumbar pad; and a supporting
roll cover. According to the literature submitted, the products
are designed to provide comforting support to the back, the
buttocks, and the neck, depending on the individual item in use,
in any chair, auto seat, sofa, bed or wheelchair. The term
"Obus" in the trade name, "Obus Forme," is an abbreviation for
the phrase "Orthopedic Brace/Upright Support."
The high back and low back supports consist of an impact
resistant, molded polycarbonate frame, padded in the front and
back with polyurethane foam and covered with an open weave
brushed nylon cover. An elastic strap allows it to be secured to
the back of a chair or car seat. The detachable lumbar pad is
made of urethane foam covered with brushed nylon. The pad can be
attached to the back support to provide additional support to the
hollow in the back. The seat is also made of a polycarbonate
- 2 -
frame padded with polyurethane foam and covered with nylon. The
front section of the seat is removable to adjust to different
seat depths. The seat can be used by itself or can be attached
to the back support with fasteners similar to VELCRO brand
fasteners. The supporting roll cover is made of nylon and is
designed to be placed over a cylindrical roll made of
polyurethane foam. It can be removed easily for cleaning and
includes an elastic strap which holds the supporting roll in the
desired position. The supporting roll is designed to provide
support to the lower back or the neck.
All of the merchandise, except for the lumbar pads, were
entered under item 727.59, TSUSA, which provides for "Furniture,
and parts thereof, not specially provided for: Of rubber or
plastics: Other: Other." The lumbar pads were entered under
item 770.40, TSUSA, which provides for "Expanded, foamed, or
sponge rubber or plastics, and articles not specially provided
for wholly or almost wholly of such rubber or plastics:
Flexible: Of polyurethane." Your office liquidated all the
items in the entry under item 770.40, TSUSA.
The protestant claims that the subject merchandise was
incorrectly classified in item 770.40, TSUSA, and that the proper
classification provision is item 727.59, TSUSA. In support of
this claim, the protestant attaches Customs Form 4313, issued by
an import specialist in Buffalo, New York, which gives a non-
binding classification for the merchandise in item 727.50, TSUSA.
We note that item 727.50 does not exist in the TSUSA for 1987.
ISSUE:
Whether the subject backrest products are classifiable in
item 770.40, TSUSA or item 727.59, TSUSA?
LAW AND ANALYSIS:
Item 727.59, TSUSA, provides for "Furniture and parts
thereof, not specially provided for: of rubber or plastics:
Other: Other."
Headnote 1 to Schedule 7, Part 4, Subpart A states in
pertinent part:
For the purposes of this subpart, the term
"furniture" includes movable articles of utility,
designed to be placed on the floor or ground, and
used to equip dwellings, offices, restaurants,
libraries, schools, churches, hospitals, or other
establishments, aircraft, vessels, vehicles, or other
means of transport, gardens, patios, parks, or similar
- 3 -
outdoor places, even though such articles are designed
to be screwed, bolted, or otherwise fixed in place on
the floor or ground; and kitchen cabinets and similar
cupboards, seats and beds,. . . ."
Thus, the chairs, seats (including automobile seats), benches,
and beds with which the subject items are designed to be used are
all considered to be furniture.
We must next consider whether the subject backrest products
are parts of furniture, classifiable in item 727.59, TSUSA. The
term "part" is a word of art in customs law. Parts Manufacturing
Associates, Inc. v. United States, 73 Cust. Ct. 42, 45, C.D. 4552
(1974). The judicial decisions which have defined this term have
looked to the "use and function of the controverted article and
its relation and contribution to the parent article." Vilem B.
Haan v. United States, 67 Cust. Ct. 104, C.D. 4260 (1971). A
product whose presence is essential to the completion of the
parent article with which it is used is considered a part of that
parent article. See American Powerail, Inc. v. United States, 83
Cust. Ct. 128, C.D. 4828 (1979); Headquarters Ruling Letter (HRL)
061978, dated January 23, 1981. Another interpretation of a part
was enunciated in Gallagher & Ascher Co. v. United States, 52
CCPA 11, C.A.D. 849 (1964), in which an auxiliary heater, which
was dedicated for use in Volkswagen automobiles but was optional
equipment, was found to be a part of an automobile because it
contributed to the safe and efficient operation of the automobile
in frigid temperatures.
Applying these two interpretations of a "part" to the
backrests, seat, and lumbar pad, we find that these products are
not essential to the completion of the parent articles with which
they are used, and do not contribute to the safe and efficient
operation of those articles. The chairs, auto seats, sofas,
beds, or wheelchairs with which these items are used are complete
without the addition of these support items. Further, the
subject products do not contribute to the safe and efficient
operation of chairs, auto seats, sofas, beds, or wheelchairs.
The products merely add to the comfort of the person who uses
them in conjunction with a piece of furniture. They are
considered to be accessories of furniture, rather than parts of
furniture, because they add to the effectiveness of the
furniture. See United States v. C.F. Liebert, 59 CCPA 43, C.A.D.
1035 (1971).
The supporting roll cover is not a part of furniture
because it is used together with the supporting roll, rather than
with furniture. The supporting roll, which is not one of the
items at issue, is not considered to be furniture based upon the
same reasoning applied to the backrests, seat, and lumbar pad.
- 4 -
In further support of this position, we note the decision
of the Court of Customs and Patent Appeals in United States v.
Shelford, Inc., 53 CCPA 53, C.A.D. 876 (1966), which held that
peel automobile backrests were correctly classified by Customs as
articles in part of rattan. The appellate court reversed the
Customs Court's finding in Shelford, Inc. v. United States, 54
Cust. Ct. 130, C.D. 2520 (1966) that the backrests were
classifiable as furniture in chief value of wood. Each backrest
was composed of a sturdy wooden frame with woven material of
peel, and was chiefly used to keep the driver cool in hot
weather. The court found that the backrests functioned as a
secondary, rather than primary, support for the back and that
they were not self-supporting. It was determined that the
backrests were used in a similar manner as pillows and cushions,
and that they were therefore considered, in ordinary terminology,
to be furnishings rather than furniture. The court also held
that the backrests functioned as accessories to furniture rather
than as furniture itself.
Although the Court of Customs and Patent Appeals in United
States v. Shelford, Inc., supra, did not address the issue of
whether the backrests were classifiable as parts of furniture, it
implicitly made this determination by finding that the backrests
were not classifiable in the paragraph of the Tariff Act of 1930
which provided for "Furniture,. . .and parts thereof, wholly or
in chief value of wood, and not specially provided for."
We also note ORR Ruling 73-0291, dated December 10, 1973,
in which an inflatable vinyl plastic backrest was found not to be
classifiable as furniture under item 727.48, TSUSA.
The protestant's reliance on Customs Form 4313, issued by
an import specialist in Buffalo, New York regarding the subject
articles, is not persuasive because the classification given in
that form is non-binding.
Having found that the subject items are not classifiable as
parts of furniture, we next consider whether they were properly
classified by Customs in item 770.40, TSUSA, which provides for
"Expanded, foamed, or sponge rubber or plastics, and articles not
specially provided for wholly or almost wholly of such rubber or
plastics: Flexible: Of polyurethane." General Headnote
9(f)(ii) states that the term "wholly of," when used between the
description of an article and a material, means that "the article
is, except for negligible or insignificant quantities of some
other material or materials, composed completely of the named
material." General Headnote 9(f)(iii) states that the term
"almost wholly of," means that "the essential character of the
- 5 -
article is imparted by the named material, notwithstanding the
fact that significant quantities of some other material or
materials may be present."
The back supports, seat, and lumbar pad are not "wholly of"
expanded, foamed, or sponge rubber or plastics because they all
contain a nylon cover which constitutes a significant quantity of
material. In addition, the back supports and seat are composed
in part of a polycarbonate frame which is not an expanded,
foamed, or sponge rubber or plastic.
Further, the back supports, seat, and lumbar pad are not
"almost wholly of" expanded, foamed, or sponge rubber or plastics
because it cannot be said that the essential character of these
items is imparted by the polyurethane foam. The polycarbonate
frame of the back supports and the seat is essential to the
function of both products because it provides the firm support
which is the distinguishing feature of these products. The
"biomechanical mold" of the frame in the back supports and seat
is designed to conform to the shape of the back and the buttocks.
In addition, the nylon covers of these products serve the
following important functions: provide a washable, comfortable
surface; absorb perspiration; and prevent the polyurethane foam
from sticking to the user. Based upon the significant functions
of the polycarbonate frame and the nylon covers, we cannot
conclude that the polyurethane foam imparts the essential
character of the back supports, seat, and lumbar pad.
The supporting roll cover is clearly not classifiable in
item 770.40, TSUSA, as an article wholly or almost wholly of
expanded, foamed, or sponge rubber or plastics, because it is
made of nylon material and has no expanded, foamed, or sponge
rubber or plastics in its composition.
Because the subject items do not meet the criteria of item
770.40, TSUSA, they are not classifiable in that provision.
Before determining whether another basket provision is
applicable, we consider whether there is an eo nomine provision
which covers these products.
Item 727.8610, TSUSA, provides for "pillows, cushions,
mattresses, and similar furnishings, all the foregoing, whether
or not fitted with covers and with or without electrical heating
elements, fitted with springs, stuffed, or both, or of expanded,
foamed, or sponge rubber or plastics: Other: Pillows and
cushions." The back supports, seat, and lumbar pad are
classifiable in this provision because they are considered to be
pillows or cushions, and they are all "stuffed" with polyurethane
foam. Similar articles which can be used on most chairs or
seats, including car seats, have been classified in item 727.8610
- 6 -
as pillows or cushions. See HRL 080873, dated April 21, 1988
(cushion used on most chairs and car seats to provide support for
the lower back); HRL 080819, dated February 1, 1988 (pillow
usable on any seat back, including automobile seat back, to
support the head).
Since the subject articles are not wholly or in chief value
of cotton, they are not classifiable in item 727.82, TSUSA. They
are therefore classifiable in item 727.86, TSUSA, which provides
for "other" pillows, cushions or similar furnishings which meet
the criteria of the superior heading.
The supporting roll cover is classifiable in item 367.6380,
which provides for "Other furnishings, not ornamented: Of man-
made fibers: Other: Other: Other: Other." Headnote 1 to
Schedule 3, Part 5, Subpart C, TSUSA, states that "the term
'furnishings' means curtains and drapes, including panels and
valances; towels, napkins, tablecloths, mats, scarves, runners,
doilies, centerpieces, antimacassars, and furniture slipcovers;
and like furnishings; all the foregoing, of textile materials,
and not specially provided for." The supporting roll cover is
not specially provided for elsewhere and is considered a
furnishing within the meaning of Headnote 1 to Schedule 3, Part
5, Subpart C, TSUSA. It serves as a cover for the supporting
roll, which is considered to be a pillow for tariff
classification purposes. See HRL 059456, dated January 25, 1979;
HRL 059630, dated August 9, 1978 (classification of pillow covers
as other furnishings in items 365.91 and 365.86, TSUSA,
respectively.)
HOLDING:
The backrests, seat and lumbar pad are classifiable in item
727.8610, TSUSA, as pillows, cushions, and similar furnishings.
The 1987 rate of duty is 6 percent ad valorem. The supporting
roll cover is classifiable in item 367.6380, TSUSA, as other
furnishings. The 1987 rate of duty is 8.5 percent ad valorem.
Since the rates of duty under the classifications indicated
above are more than the liquidated rate, you are instructed to
deny the protest in full. A copy of theis decision should be
sent to the protestant along with the Form 19 Notice of Action.
Sincerely,
John Durant, Director
Commercial Rulings Division
Continue your research in ChatGPT or Claude
Connect Omnilex to search the legal corpus from your AI assistant.