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HQ 953673


October 6, 1993

CLA-2 CO:R:C:M 953673 DFC

CATEGORY: CLASSIFICATION

TARIFF NO.: 9404.90.20; 6307.90.94

District Director of Customs
U.S. Customs Service
Patrick V. McNamara Building
477 Michigan Ave. 48266

Dear Sir:

RE: Protest 3801-3-100048; Seat pads; Canopies. HRL's 087689, 089018, 089776, 950370, Legal Note 3(b) to Chapter 94, EN 94.01

Dear Sir:

The following is our decision regarding the request for further review of Protest 3801-3-100048 concerning the tariff classification under the Harmonized Tariff Schedule of the United States (HTSUS), of certain infant's seat pads and canopies for car seats produced in Canada. Samples were submitted for examination.

FACTS:

The merchandise involved consists of pads or cushions for an infant's car seat, a baby swing seat and a baby rocker, and canopies for car seats. All the pads are stuffed with polyester fiberfill. The outer surface on one side is a printed 50% polyester, 50% cotton woven fabric. The pads are backed with a nonwoven man-made fiber fabric. These pads have various slots for seat restraints and clips for attachment to the seat. The canopies are made of a woven blend of 50% polyester and 50% cotton fabric and have two elastic straps.

The entries covering this merchandise were liquidated on October 9, and 30, 1992, under subheading 9404.90.20, HTSUS. The protest was timely filed on January 6, 1993. Protestant claims that the baby car seat pads and the canopies are classifiable under subheading 9401.90.10, HTSUS, while the other pads for the baby swing seat and the baby rocker are classifiable under 9401.90.50, HTSUS.

ISSUE:

Are the pads and canopies classifiable as other parts of seats of a kind used for motor vehicles under subheading 9401.90.10, HTSUS, and as parts of other seats in subheading 9401.90.50, HTSUS, rather than as other cushions and similar furnishings in subheading 9404.90.20, HTSUS?

LAW AND ANALYSIS:

The competing provisions are as follows:

9404 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:

9404.90 Other:
Pillows, cushions and similar furnishings:

9404.90.20 Other

9401 Seats (other than those of heading 9402), whether or not convertible into beds, and parts thereof:

9401.90 Parts:
9401.90.10 Of seats of a kind used for motor vehicles

Other:

9401.90.50 Other

6307 Other made up articles, including dress patterns:

6307.90 Other:

6307.90.94 Other

Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that "classification shall be determined according to the terms of the headings and any relative section or chapter notes, and provided such headings or notes do not otherwise require, according to [the remaining GRI's taken in order]." In other words, classification is governed first by the terms of the headings of the tariff and any relative section or chapter notes.

Protestant maintains that under the doctrines of noscitur a sociis and ejusdem generis the seat cushions are not classifiable under heading 9404, HTSUS, because they are not furnishings "similar" to the exemplars of bedding listed therein. The doctrine of noscitur a sociis is that the meaning of a word may be ascertained by reference to the meaning of words associated with it. The doctrine of ejusdem generis is that where particular words of description are followed by general terms, the latter refer only to things of a like class with those particularly described.

In support of its position that the instant cushions are not provided for under heading 9404, HTSUS, protestant cites Headquarters Ruling Letter (HRL) 087689 dated October 11, 1990, wherein Customs stated that a cushioned comfort seat was not considered to be an article of bedding within the purview of heading 9404, HTSUS, because it was not intended for use with a bed or during sleep but rather was intended for use during day time activities. The cushioned comfort seat was held to be properly classified under subheading 6307.90.95, HTSUS, which provides for other made up articles, other, other, other.

In HRL 089018 dated August 9, 1991, Customs ruled that an infant's car seat cushion/cover was properly classifiable under heading 9404, HTSUS. It should be noted that HRL 089018 modified HRL 087961 dated January 24, 1991, in which Customs held that the same infant's car seat cushion/cover was properly classifiable under subheading 6304.93.00, HTSUS, as an other furnishing article rather than under subheading 9401.90.10, HTSUS, as a part of a seat used for motor vehicles.

In HRL 950370 dated January 7, 1992, Customs ruled that a stuffed seat cushion for an infant's rocker was classifiable under subheading 9404.90.20, HTSUS.

Although the rulings cited above holding that seat cushions are classifiable under heading 9404, HTSUS, did not specifically address the doctrines of noscitur a sociis and ejusdem generis, it was implied therein that these doctrines do not apply to heading 9404 because the cushions provided for in that heading are not restricted to articles of bedding and similar furnishings.

Legal note 3(b) to Chapter 94, HTSUS, provides that "[g]oods described in heading 9404, entered separately, are not to be classified in heading 9401, 9402 or 9403 as parts of goods."

While we agree with the protestant that the cushions are parts of seats, they are also described in subheading 9404.90.20, HTSUS, which provides for pillows, cushions, and similar furnishings, other. It is our opinion that these cushions being "goods described in heading 9404, entered separately" are precluded from classification under heading 9401 by virtue of legal note 3(b) to Chapter 94, HTSUS, supra.

The Harmonized Commodity Description and Coding System Explanatory Notes (EN) to the HTSUS, although not dispositive should be looked to for the proper interpretation of the HTSUS. See 54 FR 35138 (August 23, 1989). The EN to heading 94.01 at page 1576 reads, as follows:

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., settees, couches, sofas). When these articles are combined with other parts of seats, however, they remain classified in this heading. They also remain in this heading when presented with the seats of which they form part.

Protestant asserts that heading 9401, HTSUS, is limited to cushions for beds and seats that are convertible into beds, therefore, the reference to "cushions" in EN 94.01 is limited to cushions for beds and seats convertible into beds. Clearly, the seats with which the subject cushions are used are not beds or seats convertible into beds.

The protestant in reaching his conclusion ignores certain pertinent language in heading 9401, HTSUS. Specifically, the phrase "whether or not convertible into beds" mandates an interpretation that the seat provision applies to all seats (other than 9402) as does the parts breakout. The infant's car seats, swing seats and carrier seats are not of the class or kind of seats enumerated in heading 9402, therefore the pads and cushions for the seats are precluded from classification under headings 9401, 9402 and 9403, HTSUS.

A careful reading of the EN to heading 94.01, supra, lends support to our position that the cushions provided for in heading 9404, HTSUS, need not be bedding or furnishings "similar" to the exemplars of bedding listed therein to be classified in heading 9404. Specifically, the EN to heading 94.01 states that separately presented cushions are excluded from classification therein and are classifiable under heading 94.04 even if they [cushions] are clearly specialized as parts of upholstered seats such as settees, couches, sofas which in most instances are not convertible into beds. Certainly, it appears from a reading of this EN that the drafters of the Harmonized System did not intend to limit the term "cushions" as proposed by the protestant. See HRL 089776 dated October 21, 1991, wherein Customs drew the same conclusion regarding the classification of a foam-filled cushion.

In summary, it is our opinion that note 3(b) to Chapter 94 and the EN to heading 94.01 require that the cushions in issue be classified under heading 9404, thus precluding application of the doctrines of noscitur a sociis and ejusdem generis.

The protestant makes an extensive argument for classification of the merchandise under subheadings 9401.90.10 and 9401.90.50, HTSUS, based on GRI 3, HTSUS. We will not entertain protestant's GRI 3 arguments because the result here is governed by GRI 1, HTSUS, (i.e., legal note 3(b) to Chapter 94).

The EN to heading 94.01, supra, provides in part that "[w]hen these articles are combined with other parts of seats, however, they remain classified in this heading." Protestant relying on this excerpt states that the plastic clips which are attached to the cushions for the car seat and the swing and rocker seats are part of the seats in which the cushions are used. They are the part of the seats which secure and immobilize the cushions. Thus, protestant claims that the cushions in issue are combined with other parts [plastic clips] of seats in their imported condition, and, are properly classifiable under heading 9401.

We do not agree with protestant that the plastic clips are part of the seats in which the cushions are used. The plastic clips are sewed to the cushions. As such, the clips are not part of the seats but rather form a unitary whole with the cushion. Thus, the cushions cannot be considered as being combined with other parts of seats.

We agree with the protestant that the canopies are not classifiable under heading 9404, HTSUS. However, we do not agree that they are parts of other seats in subheading 9401.90.50, HTSUS, because they are accessories rather than parts. For this reason, it is our opinion that they are properly classifiable under subheading 6307.90.94, HTSUS [currently 6307.90.99], which provides for other made up articles, including dress patterns, other, other, other.

HOLDING:

The seat pads or cushions are classifiable under subheading 9404.90.20, HTSUS.

The canopies are classifiable under subheading 6307.90.94 [currently 6307.90.99], HTSUS.

Since the rate of duty under the classification indicated above is more than the liquidated rate, the protest should be denied in full. A copy of this decision should be attached to the Customs Form 19, and provided to the protestant, through counsel, as part of the notice of action on the protest.

Sincerely,

John Durant, Director
Commercial Rulings Division

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