CLA-2 CO:R:C:T 951528 CC
John M. Peterson, Esq.
Neville, Peterson & Williams
39 Broadway
New York, NY 10006
RE: Classification of an infant seat cushion, classifiable in
Heading 9404; classification of the cushion cover,
Heading 6304
Dear Mr. Peterson:
This letter is in response to your inquiry, on behalf of
Gold, Inc., requesting the tariff classification of an infant
seat cushion and cushion cover from China. Samples were
submitted for examination.
FACTS:
The submitted sample, designated by you as a "Newborn
Comfort Support," is designed to be mounted in an infant car seat
and similar infant seats, in order to provide cushioning and
support for infants placed in them. The foam cushion measures
26 centimeters in width, 50 centimeters in length, and from 2 to
5 centimeters in thickness. The cushion is specially shaped to
accommodate the body of an infant sitting in a chair and is
composed of three major parts: the top section (head area) is
semi-circular, with a depression to cradle the head; the central
section (broader torso area) is square with raised sides; and the
bottom section (seat area) is raised at the sides and crotch to
form a channel for each leg. Indentations below the head segment
and above the seat segment of the cushion are designed to allow
safety restraints to be drawn around the article.
The cover is specifically shaped to accommodate the foam
filling. The top of the cover is made of knitted, terry fabric;
the sides and back of the cover are made of woven fabric.
According to your submissions, both the knit and woven portion of
the cover are made of a blend of 50 percent cotton and 50 percent
polyester fabric. Along the back of the cover is a vertical,
three-snap closure, which permits the cover to be removed from
the filling for washing. Elasticized bands located under the
head area and above the seat area allow the cushion to adapt to
car or other seat restraints.
ISSUE:
Whether the infant seat cushion is classifiable in Heading
9404 of the Harmonized Tariff Schedule of the United States
Annotated (HTSUSA)?
How is the cover without the filling classified?
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.
Heading 9404 provides for articles of bedding and similar
furnishing fitted with springs or stuffed or internally fitted
with any material. The Explanatory Notes, the official
interpretation of the HTSUSA at the international level, at page
1580, state that Heading 9404 covers the following articles:
(B) Articles of bedding and similar furnishing which are
sprung or stuffed or internally fitted with any
material (cotton, wool, horsehair, down, synthetic
fibers, etc.), or are of cellular rubber or plastics
(whether or not covered with woven fabric, plastics,
etc.). For example:
...
(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.
The merchandise at issue is stuffed with a foam filling. It
is essentially a cushion, which is an article specifically listed
as being classifiable in Heading 9404. In addition, in
Headquarters Ruling Letter (HRL) 089018, dated August 9, 1991, we
ruled that an infant car seat cushion/cover is classifiable in
Heading 9404. Therefore the merchandise at issue is classifiable
in Heading 9404.
The cushion is made of foam; both sides of the cover are
made of a blend of 50 percent cotton and 50 percent polyester
fabric. GRI 3(b) provides that mixtures, composite goods
consisting of different materials or made up of different
components, and goods put up in sets for retail sale shall be
classified as if they consisted of the material or component
which gives them their essential character.
We believe that the essential character of articles of
Heading 9404 is normally imparted by the outer surface. Non-
shredded cellular rubber or plastic foam pillows and cushions are
an exception. When a cover is filled with fiberfill or shredded
materials, the decorative design, skin comfort, and the shape of
the finished item are provided by the cover. When a cover is
filled with a non-shredded foam cushion, the cushion provides the
essentials of form, shape, and size to the article.
Consequently, the essential character of this article is imparted
by the cushion, and the infant seat cushion is classifiable under
subheading 9404.90.2000, HTSUSA.
You have also stated that the cover may be imported without
the filling and contend that the cover is classifiable in Heading
6307, HTSUSA, which provides for other made up articles. The
competing heading for this merchandise is 6304, HTSUSA, which
provides for other furnishing articles, excluding those of
Heading 9404, HTSUSA. According to the Explanatory Notes, at
page 865, 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
(emphasis added); 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).
You contend that the cushion cover is classifiable in
Heading 6307 since Heading 6304 provides for furnishings and not
parts of furnishings, and the submitted cushion cover is a
component of an article classifiable in Heading 9404. You state
that as imported, the cushion cover has no utilitarian or
functional use as a furnishing. In addition, you argue that the
cushion cover is fit only to be used with the specially-shaped
foam plastic insert which comprises the remainder of the Newborn
comfort support.
According to the Explanatory Notes to Heading 6304, cushion
covers are classifiable in Heading 6304. In addition, the
Explanatory Notes to Heading 9404 specifically exclude cushion
covers from Heading 9404 and place them in Heading 6304.
Although incomplete without a cushion and therefore not
classifiable in Heading 9404, the submitted cover is nonetheless
a finished cushion cover, which does not have to undergo further
processing. The submitted cushion cover is distinguishable from
a shell that must undergo further assembly, normally cutting and
sewing. The cushion cover is similar to the merchandise of HRL
084323, dated July 20, 1989, in which cushion slipcovers, with
zippers on one side and designed for a particular line of
cushions, were classified in Heading 6304. Consequently, the
submitted cushion cover is classifiable in Heading 6304.
The cushion cover is made of knit and woven fabric and
therefore would be subject to GRI 3(b). We believe that the
essential character of this merchandise is provided by the knit
portion, since it is the side which forms the majority of the
visible surface when the item is in use and is soft, providing
comfort. Accordingly, the applicable subheading is 6304.91,
HTSUSA.
The knit portion is stated to be made of 50 percent cotton
and 50 percent polyester fabric. Additional U.S Rule of
Interpretation 1(d) states that the principles of Section XI
regarding mixtures of two or more textile materials shall apply
to the classification of goods in any provision in which a
textile material is named. Note 2(A) and subheading Note 2(A) to
Section XI provide that goods 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 neither material predominates by
weight, classification in accordance with these notes and GRI 1
is not possible.
For the classification of merchandise stated to be comprised
of 50 percent cotton and 50 percent man-made fiber blended
fabric, the Customs Service will apply the rule established in
GRI 3(c) of the HTSUSA, and require duty payment based on the
subheading which occurs last in numerical order among those which
equally merit consideration. (See e.g., HRL 082946 of December
9, 1988.) Accordingly, this merchandise is classifiable as of
man-made fibers, under subheading 6304.91.0040, HTSUSA.
We note that the merchandise may be submitted to a Customs
laboratory for analysis and will be classified in accordance with
the results of that analysis.
HOLDING:
The infant seat cushion 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 cushion cover is classified under subheading
6304.91.0040, HTSUSA, which provides for other furnishing
articles, excluding those of heading 9404, other, knitted or
crocheted, of man-made fibers. The rate of duty is 11.5 percent
ad valorem, and the textile category is 666.
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 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 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.
Sincerely,
John Durant, Director
Commercial Rulings Division