CLA-2 CO:R:C:T 950492 CC
District Director of Customs
511 N. W. Broadway Federal Building
Portland, OR 97209
RE: Decision on Application for Further Review on Protest No.
2904-91-000146; seat cushions
Dear Sir:
This protest was filed against your Notice of Redelivery,
dated April 23, 1991, involving various entries of seat cushions.
A sample was submitted for examination.
FACTS:
The merchandise at issue is a seat cushion, designated by
the protestant as "Textilene chair pads," which measures
approximately 39 centimeters on each side and is 2.5 centimeters
thick. The item's exterior is made of woven 100 percent
polypropylene, and the internal padding is made of 100 percent
urethane foam. This article has two pairs of fabric ties which
can be used to tie it to the back of a chair, holding the cushion
on the seat portion of the chair.
Your office determined that the chair pads were classifiable
under subheading 6304.93.0000 of the Harmonized Tariff Schedule
of the United States Annotated (HTSUSA), which provides for other
furnishing articles, excluding those of Heading 9404, not knitted
or crocheted, of synthetic fibers.
The protestant claims that this merchandise is classifiable
under subheading 9404.90.2000, HTSUSA, which provides for
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, other, pillows, cushions and similar furnishings, other.
ISSUE:
Whether the merchandise at issue is classifiable in Heading
6304, HTSUSA, or in Heading 9404, HTSUSA?
LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA is in
accordance with the General Rules of Interpretation (GRI's),
taken in order. GRI 1 provides that classification shall be
determined according to the terms of the headings and any
relative section or chapter notes.
According to the Explanatory Notes, the official
interpretation of the HTSUSA at the international level, Heading
6304 covers furnishing articles of textile materials, other than
those of Heading 9404. These articles include wall hangings and
textile furnishings for ceremonies (e.g., weddings or funerals);
mosquito nets; bedspreads (but not including bed coverings of
Heading 9404); cushion covers; loose covers for furniture,
antimacassars; table covers (other than those having the
characteristics of floor coverings - see Note 1 to Chapter 57);
mantlepiece runners; curtain loops; valances (other than those of
Heading 6303).
The Explanatory Notes to Heading 9404 state that this
heading covers:
(B) Articles of bedding and similar furnishing which are
sprung or stuffed or internally fitted with any
material .... For example:
(1) Mattresses, including mattresses with a metal frame
(2) Quilts and bedspreads (including counterpanes, and
also quilts for baby-carriages), eiderdowns and duvets
(whether of down or any other filling), mattress-
protectors (a kind of thin mattress placed between the
mattress itself and the mattress support), bolsters,
pillows, cushions, pouffes, etc. (emphasis added).
(3) Sleeping bags.
We believe that the merchandise at issue is classifiable in
Heading 9404. First, this article is internally fitted with
material. Second, the Explanatory Notes specifically list
cushions as a kind of article classifiable as an article of
bedding or similar furnishing in Heading 9404; the Explanatory
Notes do not list cushions as being classifiable in Heading 6304.
In addition, the Explanatory Notes to Heading 9401 (seats and
parts thereof) state that separately presented cushions, sprung,
stuffed or internally fitted with any material, are excluded from
Heading 9401, even if they are clearly specialized as parts of
upholstered seats (e.g., settees, couches, sofas); instead, they
are classifiable in Heading 9404. This note indicates that
cushions used on couches, chairs, and the like are not excluded
from Heading 9404 as articles of bedding or similar furnishing.
Finally, we have ruled that seat cushions internally fitted with
material are classifiable in Heading 9404. (See e.g.,
Headquarters Ruling Letter (HRL) 089776, dated October 21, 1991.)
Therefore the merchandise at issue is classifiable in Heading
9404.
HOLDING:
The merchandise at issue is classified under subheading
9404.90.2000, HTSUSA, which provides for 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, other, pillows, cushions and
similar furnishings, other. The rate of duty is 6 percent ad
valorem. No textile category is currently assigned to
merchandise classified under this subheading.
The protest should be allowed. A copy of this decision
should be attached to the Customs Form 19 and provided to the
protestant as part of the notice of action on the protest.
Sincerely,
John Durant, Director
Commercial Rulings Division