CLA-2-94:OT:RR:NC:N4:433
Elizabeth McGuffin
Customs Compliance Manager
Dollar General Corporation
100 Mission Ridge
Goodlettsville, TN 37072
RE: The tariff classification of a stuffed Minnie Mouse or Mickey Mouse head with ears from China.
Dear Ms. McGuffin:
In your letter dated April 11, 2018, you requested a tariff classification ruling. A description of the merchandise and a sample were provided.
Dollar General SKU number 21199501 is identified by you as the “Disney Emoji Plush Toy.” The merchandise concerned is either a stuffed, 3D shape of a round Minnie Mouse or Mickey Mouse head with ears. The exterior of the item is sewn from 100% polyester fabric and the interior of the item is stuffed with 100% polyester polyfil. The item measures approximately 14 inches by 12 inches. The face is decorated by sewing and painting in an emoji style. The submitted sample is a winking Minnie Mouse. Attached to the Minnie Mouse sample is a hangtag, which identifies the merchandise as the “Disney emoji 2+.”
You indicate and describe the merchandise concerned as a plush toy, however on the website of {www.shopdisney.com} the merchandise concerned is identified as the “Minnie Mouse Emoji Plush Pillow and the Mickey Mouse Emoji Plush Pillows.” We note that the term “pillow” is not defined in the Harmonized Tariff Schedule of the United States (HTSUS) or the Explanatory Notes (ENs) to the HTSUS.
When terms are not defined in the HTSUS or the ENs to the HTSUS, they are construed in accordance with their common and commercial meaning – Nippon Kogasku (USA), Inc. v. United States, 69 CCPA 89, 673 F.2d 380 (1982). Common and commercial meaning may be determined by consulting dictionaries, lexicons, scientific authorities and other reliable sources. C.J. Tower & Sons v. United States, 69 CCPA 128, 673 F.2d 1268 (1982).
The Online Merriam-Webster Dictionary defines a “cushion” at 1.: as a soft pillow or pad usually used for sitting, reclining, or kneeling; a “throw pillow” at 1.: as a small pillow used especially as a decorative accessory; and a “pillow” at 1.: as a support for the head of a reclining person, especially, one consisting of a cloth bag filled with feathers, down, sponge rubber, or plastic fiber.
To expand on the meaning of “throw pillow” the Online US Oxford Dictionary defines a “throw pillow” as a small decorative pillow placed on a chair or couch. Wikipedia defines a [“throw pillow and toss pillow” as small, decorative type of pillow, which is usually placed on sofas or armchairs but are also frequently used on beds, day beds and floors. Throw pillows and toss pillows serve both an aesthetic and a functional purpose.”] Still, for industry or commercial purposes the terms “cushion pillow” or “throw pillow cushion,” are used for describing and selling a product commonly referred to as a “throw pillow.”
When looking at the furniture and bedding industry “many interior designers agree that certain sizes of throw pillows work best for certain situations, even though there are a wide variety of styles and sizes of decorative pillows. For throw pillows, the standard sizes range from 16 inches square to jumbo 24 inches square, and for round pillows, the standard size is 14 inches in diameter – cushionsource.com.”
Although the “throw pillow” can be regarded as an [accent pillow] too, there is nothing in the Legal Notes to Chapter 94 or the terms of heading 9404 of the HTSUS, or the ENs to Chapter 94 with its heading of 9404, restricting throw pillows to standard sizes for furniture and bedding purposes. This is in contrast to pillows used for sleeping purposes, resting one’s head, which are manufactured and sold in standard sizes. Furthermore, see Infantino, LLC v. United States, Slip Op 14-155, dated December 24, 2014, referencing Buaerhin Technologies Ltd. Partnership v. United States, 110 F.3d 744 (Fed. Cir.1997), at 776-778, “rejecting the argument that HTSUS heading 9404 was limited to items whose primary purpose is to facilitate sleeping or napping.”
We are of the opinion that the “Disney emoji 2+” in the shape of a stuffed Minnie Mouse or Mickey Mouse head falls within the plain language of the heading 9404, HTSUS. Accordingly, the decorative throw or accent pillows of the merchandise concerned is classifiable in subheading 9404.90, HTSUS. See New York ruling number N295248 dated April 4, 2018.
To answer your inquiry whether the merchandise concerned is a “toy,” and therefore classifiable in heading 9503 of the HTSUS, see New York ruling number N250031 dated February 21, 2014. In N250031, CBP found that in order to be classified as a toy, the item “must be full figured or reasonably full figured, and have a depiction of the animal or creature it seeks to represent, and that the figure must be a soft, sculptured edition or an articulation in three dimensions of the head, torso and appendages of the character being portrayed.” Further, the merchandise concerned is not principally designed for amusement, but rather to be used as an article of bedding to be placed on a bed, chair, sofa or the like. Because the merchandise concerned is not full figured or reasonably full figured, and is an article of bedding, it cannot be classified as a toy.
The applicable subheading for “SKU number 21199501 “Disney emoji 2+,” will be 9404.90.2000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for “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.” The rate of duty will be 6% ad valorem.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at https://hts.usitc.gov/current.
This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).
A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Neil H. Levy at [email protected].
Sincerely,
Steven A. Mack
Director
National Commodity Specialist Division