CLA-2 CO:R:C:M 950252 NLP

Ms. Jeanne Thompson
North American Customs Department
IKEA WHOLESALE, INC.
Plymouth Commons
Plymouth Meeting, PA 19462

RE: Seat cushions which are internally fitted with material; parts of seats; heading 9404; Explanatory Note 94.04; heading 9401; Explanatory Note 94.01; HRL 089018

Dear Ms. Thompson:

This is in response to your letter dated July 23, 1991, in which you requested a tariff classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) for two chair cushions.

FACTS:

Article #605-928-34 consists of a 100 percent cotton cover with a polyurethane foam and polyester fiber filling. This article has an opening at the top and is designed to fit over the back frame and seat part of a chair. This completes the chair by making it more comfortable for sitting. This cushion is imported from Canada.

Article #409-500-41 is an underseat and back cushion composed of a 65 percent polyester/35 percent cotton cover filled with synthetic fibers. It is tied to a chair frame by tie strings. This cushion is imported from Sweden.

Neither of the above articles is shipped or entered with the other chair components.

ISSUE:

Whether the articles are classified as cushions under heading 9404, HTSUSA, which provides for mattress supports, articles of bedding and similar furnishings or as seat parts under heading 9401, HTSUSA, which provides for seats (other than those of heading 9402), whether or not convertible into beds, and parts thereof.

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 heading and any relative section or chapter notes.

Heading 9404, HTSUSA, provides for mattress supports, articles of bedding and similar furnishings (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.

The Harmonized Commodity Description and Coding System (HCDCS) Explanatory Notes, although not dispositive, are to be looked to for the proper interpretation of the HTS. See, 54 Fed. Reg. 35127, 35128 (August 23, 1989). The Explanatory Notes to heading 9404, HCDCS, page 1580, 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 (of a kind of thin mattress placed between the mattress itself and the mattress support), bolsters, pillows, cushions, pouffes, etc.

(3) Sleeping bags

* * * * * * See the Explanatory Note to heading 94.01 concerning cushions or mattresses HAVING THE CHARACTER OF PARTS OF SEATS. (Emphasis added)

Heading 9401, HTSUSA, provides for seats (other than those of heading 9402), whether or not convertible into beds, and parts thereof. Explanatory Note 94.01, HCDCS, page 1576, states the following:

The heading also covers identifiable parts of chairs or other seats, such as backs, bottoms and armrests (whether or not upholstered with straw or cane, stuffed or sprung), and spiral springs assembled for seat upholstery.

Separately presented cushions and mattresses, sprung, stuffed or internally fitted with any material or of cellular rubber or plastics whether or not covered, are excluded (heading 94.04) even if they are clearly specialized as parts of upholstered seats (e.g., settes, couches, sofas).

The instant articles are internally fitted with polyurethane, polyester and synthetic fibers, respectively. They are used as cushions for chairs. Explanatory Note 94.04, HCDCS, specifically lists cushions as a kind of article classifiable as an article of bedding or similar furnishing in Heading 9404, HTSUSA. The fact that the instant cushions cover the entire chair as opposed to only part of the chair does not remove them from this provision. In addition, we have ruled that an infant seat cover internally fitted with material, which is not an article used as bedding, is classified in Heading 9404, HTSUSA. See, HRL 089018, dated August 9, 1991. As seat cushions are specifically excluded from heading 9401, classification in heading 9404, HTSUSA, is appropriate.

Article #409-500-41 is made of a 65 percent polyester and 35 percent cotton cover filled with synthetic fibers. The possible classifications for this article are in subheading 9404.90.10.00, HTSUSA, which provides for cushions made of cotton or in subheading 9404.90.20.00, HTSUSA, which provides for cushions made of other than cotton. In determining the correct classification, we look to Additional U.S. Rule of Interpretation 1(d), which states the following:

1. In the absence of special language or context which otherwise requires--

* * * * * (d) the principles of section XI regarding mixtures of two or more textile materials shall apply to the classification of goods in any provisions in which a textile material is named.

According to subheading Note 2 to Section XI, HTSUSA,:

(A) Products of chapter 56 to 63 containing two or more textile materials are to be regarded as consisting wholly of that textile material which would be selected under note 2 to this section for the classification of a product of chapters 50 to 55 consisting of the same textile materials.

Note 2 to section XI states that goods classifiable in chapters 50 to 55 or in heading 5809 or 5902 and of a mixture of two or more textile materials are to be classified as if consisting wholly of that one textile material which predominates by weight over each other single textile material. Since the polyester predominates by weight over the cotton in this cover, article #409-500-41 is classified in subheading 9404.90.20.00, HTSUSA. Article #605-928-34, which has a 100 percent cotton cover, is classified in subheading 9404.90.10.00, HTSUSA.

HOLDING:

Article #409-500-41 is classified in subheading 9404.90.20.00, HTSUSA, which provides for articles of bedding and similar furnishings (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.

Article #605-928-34 is classified in subheading 9404.90.10.00, HTSUSA, which provides for articles of bedding and similar furnishings (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, of cotton. The textile category is 369 and the rate of duty is 6 percent ad valorem.

If article #605-928-34 meets the definition of "goods originating in the territory of Canada (see General Note 3(c)(vii)(B), HTSUSA), it would be eligible for a duty rate of 4.2 percent ad valorem under the United States-Canada Free Trade Agreement. Moreover, if it is an article originating in Canada it is not subject to the quota/visa category in subheading 9404.90.10.00, HTSUSA.

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 your local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

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 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.

Sincerely,

John Durant, Director
Commercial Rulings Division