HQ 089018

August 9, 1991

CLA-2 CO:R:C:T 089018 HP

CATEGORY: Classification

TARIFF NO.: 9404.90.2000

Siegel, Mandell & Davidson, P.C.

One Whitehall Street

New York, NY 10004

RE: HRL 087961 modified. Infant\'s car seat covers which are

stuffed or internally fitted are seat cushions. Part;

automobile; GSP; Mexico; furnishing

Dear Attorneys for Cosco, Inc.:

This is in reply to your letter of March 26, 1991,

requesting reconsideration of Headquarter\'s Ruling Letter

(HRL) 087961. Please reference your client Cosco, Inc.

FACTS:

The merchandise at issue consists of an infant\'s car seat

cushion/cover (\"cover\"), model no. 02-719. The back panel,

back \"collar\" and seat panel of the article are made from 100%

polyester quilted fabric backed by polyester filler (weighing

4 oz. per linear yard) and lined with 100% polypropylene

fabric. The seat panel covers a seat pad made from 100%

polyurethane foam, the back of which is covered by a layer of

polypropylene fabric. The cover is designed for infants who

weigh 17 pounds or less and whose height is 26 inches or less

and is intended to help protect them from shocks that may

occur when traveling by automobile.

The cover is assembled in Mexico from U.S. material which

is imported into Mexico from unmarked bolts of fabric

measuring either 58\" x 100 yards or 58\" x 500 yards. In

addition, the foam pad and all thread used in sewing the cover

are of U.S. origin. After importation, the car seat cover is

secured over additional foam padding (on the top and sides) to

a plastic infant\'s car seat.

In HRL 087961 of January 24, 1991, we held that the cover

was classified in subheading 6304.93.0000, Harmonized Tariff

Schedule of the United States Annotated (HTSUSA), as an other

furnishing article. You disagree with this conclusion, and

once again request classification under subheading

9401.90.1000, HTSUSA, as a part of a seat used for motor

vehicles.

ISSUE:

Whether the car seat cover is considered a part of an

automobile seat under the HTSUSA?

LAW AND ANALYSIS:

Heading 9401, HTSUSA, provides for seats, and parts

thereof. It is recognized that the infant\'s car seat as a

whole is classifiable therein. See subheading 9401.20.0010,

HTSUSA; HRL 080959 of July 8, 1988. We must determine,

therefore, if the cover is considered a \"part\" of the car

seat.

The Explanatory Notes (EN) to the HTSUSA constitute the

official interpretation of the tariff at the international

level. While not legally binding, they do represent the

considered views of classification experts of the Harmonized

System Committee. It has therefore been the practice of the

Customs Service to follow, whenever possible, the terms of the

Explanatory Notes when interpreting the HTSUSA.

The EN to heading 9401 states:

The heading also covers identifiable

parts of chairs or other seats, such as

backs, bottoms and armrests (whether or

not upholstered with straw or cane,

stuffed or sprung), and spiral springs

assembled for seat upholstery.

The EN goes on to exclude from heading 9401 \"\[s\]eparately

presented cushions \... whether or not covered \... (heading

94.04).\"

In HRL 087961, we underwent an analysis of whether the

car seat cover was considered a cushion under heading 9404,

HTSUSA. Indeed, in that request you advocated classification

of the instant merchandise as a cushion. Therein, we stated:

In \... \[HRL\] 085885 dated January 23,

1990, an infant\'s car seat cover similar

to that now at issue was classified in

subheading 6304.92.0000, HTSUSA, on the

grounds that seat covers were neither

similar to nor of the same type as the

kinds of articles named in the heading.

Nevertheless, you contend that the article

in question cannot be considered a seat or

cushion cover of heading 6304 due to the

existence of a foam pad sewn beneath the

seat panel, and thus distinguish if from

the merchandise \... of HRL 085885.

Moreover, you maintain that the car seat

cover qualifies as a cushion in that it

functions as a support or shock absorber

for an infant occupying the car seat

itself and should therefore be classified

in heading 9404.

\* \* \*

In HRL 085375 dated November 8, 1989,

Customs held that a ruffled chair cover

was classifiable in heading 6304

notwithstanding the fact that it contained

a polyurethane cushion. The cushion,

which was imported with the seat cover but

attached after importation, was deemed to

be but an incidental feature of the

article which was primarily a cover for

the infant\'s automobile seat.

\* \* \*

Based upon the above analysis, we decided that

\[t\]he principal function of the Cosco

article is to cover the \... car seat.

Consequently, \... the seat cover in

question, despite the existence of a foam

cushion, is ejusdem generis with the

cushion covers and loose furniture covers

for furniture described by EN 63.04.

This finding was incorrect. The EN to heading 9404, HTSUSA,

includes therein \"\[a\]rticles of bedding and similar

furnishings\[, including cushions,\] which are \...stuffed or

internally fitted with any material\....\" The above

description of the infant\'s car seat cover, which is

internally fitted where such fitting would be required for

efficient use of the merchandise, clearly meets the definition

of cushions. As seat cushions are specifically excluded from

heading 9401 (see EN to that heading), classification in

heading 9404, HTSUSA, is appropriate.

HRL 087961 is modified accordingly. In addition, HRLs

085885 and 085375 are not in conformity with the above-stated

analysis, and no longer reflect the opinion of the Customs

Service. Appropriate action will be taken to inform those

rulings\' recipients of this modification.

HOLDING:

As a result of the foregoing, the instant merchandise is

classified under subheading 9404.90.2000, HTSUSA, as 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, other, pillows, cushions and similar

furnishings, other. The applicable General rate of duty is 6

percent ad valorem.

Articles classified under subheading 9404.90.2000,

HTSUSA, when imported from designated beneficiary countries,

are entitled to a Free duty rate under the Generalized System

of Preferences. Section 503, Trade Act of 1974.

Additionally, Heading 9802.00.80, HTSUSA, provides a partial

duty exemption for articles assembled abroad in whole or in

part of fabricated components, the product of the United

States. Should you wish to inquire as to your eligibility

under either of these provisions, please direct your letter

to:

U.S. Customs Service

Office of Regulations & Rulings

Commercial Rulings Division

Washington, D.C. 20229

Attention: Chief, Special Classification Branch

In order to insure uniformity in Customs classification

of this merchandise and eliminate uncertainty, we are

modifying HRL 087961 to reflect the above classification

effective with the date of this letter. However, if you

disagree with the legal basis for our decision, we invite you

to submit, either for yourself or on behalf of your client,

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 therefore be considered a

modification of HRL 087961 of January 24, 1991, under 19

C.F.R. 177.9(d)(1) (1989). It is not to be applied

retroactively to HRL 087961 (19 C.F.R. 177.9(d)(2) (1989))

and will not, therefore, affect the transaction for the

importation of your merchandise under that ruling. However,

for the purposes of future transactions in merchandise of this

type, including that for which the present classification is

requested, HRL 087961 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 the release of

HRL 089018 will be classified under the new ruling. If such a

situation arises, you may, at your discretion, notify this

office and apply for relief from the binding effects of the

new ruling as may be dictated by the circumstances. However,

please be advised that in some instances involving import

restraints, such relief may require separate approvals from

other government agencies.

A copy of this ruling letter should be attached to the

entry documents filed at the time this merchandise is

imported. If the documents have been filed without a copy,

this ruling should be brought to the attention of the Customs

officer handling the transaction.

Sincerely,

John Durant, Director

Commercial Rulings Division