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HQ 952479


January 4, 1993

CLA-2 CO:R:C:T 952479 CC

CATEGORY: CLASSIFICATION

TARIFF NO.: 9404.90.1000

M. Barry Levy
Sharretts, Paley, Carter & Blauvelt, P.C. 67 Broad Street
New York, NY 10004

RE: Revocation of HRL 087689; classification of a baby seat cushion; classifiable in Heading 9404

Dear Mr. Levy:

In Headquarters Ruling Letter (HRL) 087689, dated October 11, 1990, we issued a ruling to you, on behalf of Noel Joanna, Inc., classifying baby seat cushions in Heading 6307 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). We have had the occasion to review this ruling and find that it is in error.

FACTS:

The merchandise at issue is a "SoftSeat" baby comfort seat made of a 100 percent polyester filling with an outer covering of 80 percent cotton and 20 percent polyester fabric. It is a rectangular article measuring approximately 11 inches by 18 inches, with a 4 inch by 4 inch fabric strap stitched into the middle of one end. This strap is attached to a 5 inch wide band which is padded with the polyester filling, and is long enough to encircle the rectangular piece. A hook and loop closure in the back allows the band to be securely adjusted around the child. The surface fabric which faces the child is made of terry cloth, and all the other exterior surfaces are made of woven fabric.

In effect, the article's main piece functions to provide a cushion to the bottom and back of a child while sitting in a shopping cart or high chair, and the straps secure the padding between the legs and around the body of the child in the manner of a seat belt.

ISSUE:

Whether the merchandise at issue is classifiable 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.

We have issued several rulings classifying infant seat cushions as cushions of Heading 9404. See, e.g., HRL 089018 of August 9, 1991, HRL 950309 of December 4, 1991, HRL 951526 of August 14, 1992, and HRL 951528 of August 14, 1992. The merchandise at issue is essentially a seat cushion similar to the goods of the aforementioned rulings and therefore is classifiable in Heading 9404.

The inner layer of this merchandise is made of polyester; the outer shell is made of a blend of 80 percent cotton and 20 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. The outer shell provides comfort for the user and decoration and gives this merchandise its distinctiveness; the outer shell, therefore, imparts the essential character to this merchandise. Consequently, it is classifiable as if consisting only of the outer shell.

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 cotton predominates by weight in the outer shell, this merchandise is classifiable under subheading 9404.90.1000, HTSUSA, which provides for pillows, cushions and similar furnishings, of cotton.

HOLDING:

The submitted merchandise is classified under subheading 9404.90.1000, 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, of cotton. The rate of duty is 6 percent ad valorem, and the textile category is 369.

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.

In order to insure uniformity in Customs classification of this merchandise and eliminate uncertainty, we are modifying HRL 087689 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 087689 under 19 CFR 177.9(d)(1). It is not to be applied retroactively to HRL 087689 (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 087689 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

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