CLA-2 CO:R:C:M 088844 AJS
Mr. Kare Backstrom
6097 Blackberry Ct.
Hamilton, OH 45011
RE: Reconsideration NY 841152; automotive seat cushion;
Subheading 9404.90.20; 54 Fed. Reg. 35127, 35128; Explanatory
Note 94.04(B); Subheading 8708.29.00; Explanatory Note 87.08;
Section XVII, General Explanatory Note (III).
Dear Mr. Backstrom:
On May 25, 1989, Customs issued to you New York (NY) ruling
letter 841152, which classified automotive seat cushions within
subheading 8708.29.00, Harmonized Tariff Schedule of the United
States Annotated (HTSUSA). We have been asked to reconsider this
ruling.
FACTS:
The articles at issue are three styles of automotive seat
cushions. The Models 41001 and 41015 consist of a foam inner
layer sewn within a plastic sheet backing and fabric front
covering. Elastic straps are attached so that the cushion may be
secured to the back of an automotive seat. The Model 42008 is
constructed in a similar manner but it also contains a heating
element that operates when plugged into the automobile's
cigarette lighter socket.
ISSUE:
Whether the subject seat cushions are properly classifiable
within heading 8708, HTSUSA, which provides for parts and
accessories of the motor vehicles of headings 8701 to 8705; or
classifiable within heading 9404, HTSUSA, which provides for
"[m]attress supports; articles of bedding and similar furnishings
(for example . . . cushions . . .) . . . stuffed or internally
fitted with any material . . . whether or not covered."
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LAW AND ANALYSIS:
Heading 9404, HTSUSA, provides for articles of bedding and
similar furnishings (for example cushions etc.,) stuffed or
internally fitted with any material. The subject cushions
satisfy the terms of this heading. They consist of a plastic
sheet backing and fabric front covering with a foam inner layer,
and in some cases an additional heating element. Articles
remain classified in this heading whether or not they incorporate
electric heating elements. Explanatory Note (EN) 94.04 (B). The
Explanatory Notes, although not dispositive, should be used to
determine the proper interpretation of the HTSUSA. 54 Fed. Reg.
35127, 35128 (August 23, 1989). Therefore, the subject cushions
are properly classifiable within heading 9404, HTSUSA. More
specifically, they are classifiable within subheading 9404.90.20,
HTSUSA, which provides for pillows, cushions and similar
furnishings.
Heading 8708, HTSUSA, provides for parts and accessories of
motor vehicles. As stated previously, the subject cushions were
originally classified within this heading. This heading covers
parts and accessories provided they fulfill the following
conditions:
(i) They must be identifiable as being suitable for use
solely or principally with the above mentioned vehicles;
and (ii) They must not be excluded by the provisions of the
Notes to Section XVII (see the corresponding General
Explanatory Note). EN 87.08.
In addition the General Explanatory Notes provide that:
(c) They must not be more specifically included elsewhere
in the Nomenclature (see paragraph (C) below). Section
XVII, General EN (III).
Paragraph C states that "[p]arts and accessories, even if
identifiable as for the articles of this section, are excluded if
they are covered more specifically by another heading elsewhere
in the Nomenclature . . ." As discussed above, the subject
cushions are covered more specifically by heading 9404, HTSUSA.
Therefore, the subject cushions are not properly classifiable
within heading 8708, HTSUSA.
HOLDING:
The Models 41001, 41015 and 42008 automotive seat cushions
are properly classifiable within subheading 9404.90.20, HTSUSA,
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which provides for pillows, cushions and similar furnishings,
dutiable at the rate of 6 percent ad valorem.
In order to insure uniformity in Customs classification of
this merchandise and eliminate uncertainty, we are modifying NY
841152 to reflect the above classification effective with the
date of this letter.
This notice should be considered a modification of NY 841152
under 19 C.F.R. 177.9(d)(1). It is not to be applied
retroactively to this letter (19 C.F.R. 177.9(d)(2)) and will
not, therefore, affect past transactions for the importation of
your merchandise under this ruling. However, for the purposes of
future transactions in merchandise of this type, this letter will
no longer 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 this modification. If such a situation
should arise, you may, at your discretion, notify this office and
apply for relief from the binding effects of this ruling as may
be warranted by the circumstances.
Sincerely,
John Durant, Director
Commercial Rulings Division