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HQ 956997



March 14, 1995
CLA-2 CO:R:C:M 956997 KCC

CATEGORY: CLASSIFICATION

TARIFF NO.: 9404.90.20

District Director
U.S. Customs Service
1000 2nd Avenue
Room 2200
Seattle, Washington 98104

RE: Protest 3001-94-100131; aircraft flight attendant seats; cushions; Note 3(b), Chapter 94; separately presented; HRL 088144; 9401.10.80; 9401.90.50; parts; EN 94.01; EN 94.04; Additional U.S. Rule of Interpretation 1(c)

Dear District Director:

This is in regards to Protest 3001-94-100131, regarding the tariff classification of cushions for aircraft flight attendant seats under the Harmonized Tariff Schedule of the United States (HTSUS). Information contained in an additional submission dated January 30, 1995, was taken into consideration in rendering this decision.

FACTS:

This protest concerns the tariff classification of parts of aircraft flight attendant seats, i.e., side assembly, bottom assembly, cushions, head rest, panel assembly and beam assembly. However, you requested that we only examine the tariff classification of cushions for aircraft flight attendant seats. These seats are designed so that the bottom can be folded-up when not occupied by a flight attendant. The parts at issue are described by the protestant as the Cushion back (p/n 5954606-1), and Cushion bottom ( p/n 5954609-1). The protestant states that the cushions are the back and bottom of the seats which are made of urethane foam with a synthetic leather or fabric cover, depending upon customer specifications.

The entry of the cushions was liquidated on November 19, 1993, under subheading 9404.90.20, HTSUS, as other pillows, cushions and similar furnishings. In a protest timely filed on February 15, 1994, the protestant contends that the cushions are classified under subheading 9401.10.80, HTSUS, as parts of seats of a kind used for aircraft.

The subheadings at issue are as follows:

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

9401.10.80 Seats of a kind used for aircraft...Other.

9401.90.50 Parts...Other...Other.

9404.90.20 Mattress supports; 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:

Are the cushions for aircraft flight attendant seats classified under subheading 9401.10.80, HTSUS, as parts of seats of a kind used for aircraft, or under subheading 9404.90.20, HTSUS, as other pillows, cushions and similar furnishings?

LAW AND ANALYSIS:

The classification of merchandise under the HTSUS is governed by the General Rules of Interpretation (GRI's). GRI 1, HTSUS, states, in part, that "for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes...."

Note 3(b), Chapter 94, HTSUS, states:

Goods described in heading 9404, entered separately, are not to be classified in heading 9401, 9402 or 9403 as parts of goods.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) may be utilized. The ENs, although not dispositive, provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of the HTSUS. See, T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). EN 94.04 (pgs. 1579-1580), states that heading 9404, HTSUS, covers:

(B) Articles of bedding and similar furnishing which are sprung or stuffed or internally fitted with any material (cotton, wool, horsehair, down, synthetic fibres, etc.), or are of cellular rubber or plastics (whether or not covered with woven fabric, plastics, etc.). 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.

(3) Sleeping bags.

See the Explanatory Note to heading 94.01 concerning cushions or mattresses having the character of parts of seats.

EN 94.01 PARTS (pg. 1576), states:

The heading also covers identifiable parts of chairs or other seats, such as backs, bottoms and arm rests (whether or not upholstered with straw or cane, stuffed or spring), and spiral springs assembled for seat upholstery.

Separately presented cushions and mattresses, spring, 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 specialised 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 parts (emphasis in original).

We are of the opinion that Note 3(b), Chapter 94, HTSUS, and EN 94.01, means that separately imported seat cushions which are parts of seats are specifically excluded from classification under heading 9401, HTSUS. See, Headquarters Ruling Letter (HRL) 088144 dated February 25, 1991. In this protest, the cushions which are described in heading 9404, HTSUS, are not entered separately. The cushions were entered with other parts of aircraft flight attendant seats, i.e., head rest, side assembly, bottom assembly, panel assembly and beam assembly. Therefore, the cushions are not excluded from heading 9401, HTSUS, pursuant to Note 3(b), Chapter 94, HTSUS or EN 94.01.

We note that EN 94.01 states, in part, that:

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 parts.

Although the cushions are entered with other parts of the aircraft flight attendant seats, they are not physically combined with those parts. Therefore, the "combined with" portion of EN 94.01 is inapplicable to the cushions at issue. The cushions are not presented/entered with the entire aircraft flight attendant seat, but they are entered with various parts of the aircraft flight attendant seats to which the cushions will be attached. The bottom cushion and back cushion are designed to be attached to the beam assembly and panel assembly, respectively, both of which were entered with the cushions.

Based on the information presented, we are of the opinion that the cushions are not excluded from classification under heading 9401, HTSUS. The cushions are presented/imported with other seats parts to which they will be attached. However, the cushions are not seats of a kind used for aircraft classifiable under subheading 9401.10.80, HTSUS, as claimed by the protestant. The cushions are parts of aircraft flight attendant seats which are classifiable under subheading 9401.90.50, HTSUS, as other parts of seats.

Therefore, the cushions are classifiable under subheading 9401.90.50, HTSUS, as other parts of seats, or under subheading 9404.90.20, HTSUS, as other pillows, cushions and similar furnishings. Additional U.S. Rule of Interpretation 1(c), HTSUS, states:

[A] provision provision for parts of an article covers products solely or principally used as a part of such articles but a provision for "parts" or "parts and accessories" shall not prevail over a specific provision for such part or accessory.

Pursuant to Additional U.S. Rule of Interpretation 1(c), HTSUS, the cushions are classified under subheading 9404.90.20, HTSUS, as other pillows, cushions and similar furnishings.

HOLDING:

The cushions for aircraft flight attendant seats are classified under subheading 9404.90.20, HTSUS, as other pillows, cushions and similar furnishings.

This portion of the protest should be DENIED. In accordance with section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with this decision must be accomplished prior to the mailing of the decision. Sixty days from the date of this decision, the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and to the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division

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