Decision on Application for Further Review on Protest No. 2904-91-000146; seat cushions

HQ 950492 January 28, 1992 CLA-2 CO:R:C:T 950492 CC CATEGORY: Classification TARIFF NO.: 9404.90.2000 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