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HQ 951528

August 14, 1992

CLA-2 CO:R:C:T 951528 CC


TARIFF NO.: 9404.90.2000; 6304.91.0040

John M. Peterson, Esq.
Neville, Peterson & Williams
39 Broadway
New York, NY 10006

RE: Classification of an infant seat cushion, classifiable in Heading 9404; classification of the cushion cover, Heading 6304

Dear Mr. Peterson:

This letter is in response to your inquiry, on behalf of Gold, Inc., requesting the tariff classification of an infant seat cushion and cushion cover from China. Samples were submitted for examination.


The submitted sample, designated by you as a "Newborn Comfort Support," is designed to be mounted in an infant car seat and similar infant seats, in order to provide cushioning and support for infants placed in them. The foam cushion measures 26 centimeters in width, 50 centimeters in length, and from 2 to 5 centimeters in thickness. The cushion is specially shaped to accommodate the body of an infant sitting in a chair and is composed of three major parts: the top section (head area) is semi-circular, with a depression to cradle the head; the central section (broader torso area) is square with raised sides; and the bottom section (seat area) is raised at the sides and crotch to form a channel for each leg. Indentations below the head segment and above the seat segment of the cushion are designed to allow safety restraints to be drawn around the article.

The cover is specifically shaped to accommodate the foam filling. The top of the cover is made of knitted, terry fabric; the sides and back of the cover are made of woven fabric. According to your submissions, both the knit and woven portion of the cover are made of a blend of 50 percent cotton and 50 percent polyester fabric. Along the back of the cover is a vertical, three-snap closure, which permits the cover to be removed from the filling for washing. Elasticized bands located under the head area and above the seat area allow the cushion to adapt to car or other seat restraints.


Whether the infant seat cushion is classifiable in Heading 9404 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA)?

How is the cover without the filling classified?


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.

Heading 9404 provides for articles of bedding and similar furnishing fitted with springs or stuffed or internally fitted with any material. The Explanatory Notes, the official interpretation of the HTSUSA at the international level, at page 1580, state that Heading 9404 covers the following articles:

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


(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.

The merchandise at issue is stuffed with a foam filling. It is essentially a cushion, which is an article specifically listed as being classifiable in Heading 9404. In addition, in Headquarters Ruling Letter (HRL) 089018, dated August 9, 1991, we ruled that an infant car seat cushion/cover is classifiable in Heading 9404. Therefore the merchandise at issue is classifiable in Heading 9404.

The cushion is made of foam; both sides of the cover are made of a blend of 50 percent cotton and 50 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.

We believe that the essential character of articles of Heading 9404 is normally imparted by the outer surface. Non- shredded cellular rubber or plastic foam pillows and cushions are an exception. When a cover is filled with fiberfill or shredded materials, the decorative design, skin comfort, and the shape of the finished item are provided by the cover. When a cover is filled with a non-shredded foam cushion, the cushion provides the essentials of form, shape, and size to the article. Consequently, the essential character of this article is imparted by the cushion, and the infant seat cushion is classifiable under subheading 9404.90.2000, HTSUSA.

You have also stated that the cover may be imported without the filling and contend that the cover is classifiable in Heading 6307, HTSUSA, which provides for other made up articles. The competing heading for this merchandise is 6304, HTSUSA, which provides for other furnishing articles, excluding those of Heading 9404, HTSUSA. According to the Explanatory Notes, at page 865, 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 (emphasis added); 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).

You contend that the cushion cover is classifiable in Heading 6307 since Heading 6304 provides for furnishings and not parts of furnishings, and the submitted cushion cover is a component of an article classifiable in Heading 9404. You state that as imported, the cushion cover has no utilitarian or functional use as a furnishing. In addition, you argue that the cushion cover is fit only to be used with the specially-shaped foam plastic insert which comprises the remainder of the Newborn comfort support.

According to the Explanatory Notes to Heading 6304, cushion covers are classifiable in Heading 6304. In addition, the Explanatory Notes to Heading 9404 specifically exclude cushion covers from Heading 9404 and place them in Heading 6304. Although incomplete without a cushion and therefore not classifiable in Heading 9404, the submitted cover is nonetheless a finished cushion cover, which does not have to undergo further processing. The submitted cushion cover is distinguishable from a shell that must undergo further assembly, normally cutting and sewing. The cushion cover is similar to the merchandise of HRL 084323, dated July 20, 1989, in which cushion slipcovers, with zippers on one side and designed for a particular line of cushions, were classified in Heading 6304. Consequently, the submitted cushion cover is classifiable in Heading 6304.

The cushion cover is made of knit and woven fabric and therefore would be subject to GRI 3(b). We believe that the essential character of this merchandise is provided by the knit portion, since it is the side which forms the majority of the visible surface when the item is in use and is soft, providing comfort. Accordingly, the applicable subheading is 6304.91, HTSUSA.

The knit portion is stated to be made of 50 percent cotton and 50 percent polyester fabric. 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 neither material predominates by weight, classification in accordance with these notes and GRI 1 is not possible.

For the classification of merchandise stated to be comprised of 50 percent cotton and 50 percent man-made fiber blended fabric, the Customs Service will apply the rule established in GRI 3(c) of the HTSUSA, and require duty payment based on the subheading which occurs last in numerical order among those which equally merit consideration. (See e.g., HRL 082946 of December 9, 1988.) Accordingly, this merchandise is classifiable as of man-made fibers, under subheading 6304.91.0040, HTSUSA.

We note that the merchandise may be submitted to a Customs laboratory for analysis and will be classified in accordance with the results of that analysis.


The infant seat cushion 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 cushion cover is classified under subheading 6304.91.0040, HTSUSA, which provides for other furnishing articles, excluding those of heading 9404, other, knitted or crocheted, of man-made fibers. The rate of duty is 11.5 percent ad valorem, and the textile category is 666.

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.


John Durant, Director

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