CLA-2 CO:R:C:T 089776 CC

Ms. Beth C. Brotman
Siegel, Mandell & Davidson, P.C.
One Whitehall Street
New York, NY 10004

RE: Revocation of HRL 088610; classification of filled seat cushion; classifiable in Heading 9404

Dear Ms. Brotman:

This is in response to your letter of June 7, 1991, requesting the reconsideration of Headquarters Ruling Letter (HRL) 088610 in which a filled seat cushion was classified.

FACTS:

The merchandise at issue is a foam-filled cushion with a shell made of a woven blend of 65 percent polyester and 35 percent cotton fabric. This item measures approximately 16 inches by 19 inches at its widest points. The underside of the shell is a solid color, and the top side has a polka-dot print with a floral circular design, at the center of which is a depiction of a cottage surrounded by the words "WELCOME FRIENDS." The edges of the cushion are finished with self-fabric binding, and one edge of the cushion has self-fabric straps for securing it to a chair.

In New York Ruling Letter (NYRL) 848110 the subject merchandise was classified in Heading 9404 of the Harmonized Tariff Schedule of the United States Annotated (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. This ruling was modified by HRL 088610, dated May 10, 1991, in which the subject merchandise was classified in Heading 6304, HTSUSA, which provides for other furnishing articles, excluding those of Heading 9404. You contend that the correct classification for this merchandise is under subheading 9404.90.2000, HTSUSA.

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.

In HRL 088610 we stated, "Although heading 9404 includes cushions that are stuffed or internally fitted with any material, such cushions must be of the type which are in fact articles of bedding and similar furnishings. Since the merchandise at issue is designed for use on chairs, especially kitchen chairs, it is not considered an article of bedding or similar furnishing."

This finding is incorrect. First, we note that the merchandise at issue 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 an infant seat cover internally fitted with material, which is not an article used as bedding, is classifiable in Heading 9404. (See HRL 089018, dated August 9, 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.

In order to insure uniformity in Customs classification of this merchandise and eliminate uncertainty, we are modifying HRL 088610 to reflect the above classification effective with the date of this letter. However, if after your review, you disagree with the legal basis for our decision, we invite you to submit any arguments you might have with respect to this matter for our review. Any submission you wish to make should be received within 30 days of the date of this letter.

This notice to you should be considered a modification of HRL 088610 under 19 CFR 177.9(d)(1). It is not to be applied retroactively to HRL 088610 (19 CFR 177.9(d)(2)) and will not, therefore, affect past transactions for the importation of your client's merchandise under that ruling. However, for the purposes of future transactions in merchandise of this type, HRL 088610 will not be valid precedent. We recognize that pending transactions may be adversely affected by this modification, in that current contracts for importations arriving at a port subsequent to this decision will be classified pursuant to it. If such a situation arises, your client may, at its discretion, notify this office and apply for relief from the binding effects of this decision as may be warranted by the circumstances. However, please be advised that in some instances involving import restraints, such relief may require separate approvals from other government agencies.


Sincerely,

John Durant, Director
Commercial Rulings Division