CLA-2-94:OT:RR:NC:N4:463
Debbie A. Bell
HSN
1 HSN Drive
St. Petersburg, FL 33729
RE: The tariff classification of an owl-shaped decorative pillow made in China
Dear Ms. Bell:
In your letter dated October 28, 2022, you requested a binding ruling on behalf of your affiliate, Grandin Road. In lieu of samples, illustrative literature and product descriptions were provided.
Per the submitted written description and picture, the subject article is an owl-shaped decorative pillow, item #177373, consisting of a 100% polyester outer shell with a 100% polyester filling. The shell is printed with the image of an owl in orange and black with large yellow eyes and a blue beak. It measures approximately 16" (H) x 10" (W) x 5 (D)". The item is minimally contoured with the widest portion of the body being only a little wider than the base and the head. There are no protruding appendages other than the ears, which appear to project approximately 1" above the head on either side. The item weighs approximately 2 lbs. and is made in China. The requester states that the pillow is marketed and sold during the Halloween season, is purely decorative and is not intended to be used as a traditional pillow that you lay your head on or prop yourself up with.
You suggest that the subject pillow be classified in subheading 6307.90.9891, HTSUS, which provides for “Other made up articles, including dress patterns: Other: Other: Other: Other: Other.” We disagree.
Classification under the Harmonized Tariff Schedule of the United States (HTSUS) is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. If the goods cannot be classified solely based on GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.
GRI 3(a) in its pertinent part states that “The heading which provides the most specific description shall be preferred to headings providing a more general description.” We note that heading 9404 lists “pillows” as an example and is thus more specific than heading 6307, which states the very broad “Other made up articles, including dress patterns”.
We note that the term “pillow” is not defined in the 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.
Regarding “throw pillows,” which can also be called “accent pillows,” there is nothing in the Legal Notes to Chapter 94 or in the terms of heading 9404, or in the ENs to Chapter 94 of the HTSUS restricting throw pillows to standard sizes. This is in contrast to pillows used for sleeping or resting one’s head, which are manufactured and sold in standard sizes. Furthermore, 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, “[rejects] 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, notwithstanding the pillow’s Halloween motif, this item falls within the plain language of the heading 9404, HTSUS. Accordingly, the decorative owl pillow is classifiable in subheading 9404.90, HTSUS. See New York rulings N296006 (4/27/18) and N295248 (4/4/18).
The applicable subheading for the decorative owl shaped pillow, item #177373, will be subheading 9404.90.2000, 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 general rate of duty will be 6% ad valorem.
Pursuant to U.S. Note 20 to Subchapter III, Chapter 99, HTSUS, products of China classified under subheading 9404.90.2000, HTSUS, unless specifically excluded, are subject to an additional 7.5 percent ad valorem rate of duty. At the time of importation, you must report the Chapter 99 subheading, i.e., 9903.88.15, in addition to subheading 9404.90.2000, HTSUS, listed above.
This ruling is being issued under the provisions of Part 177 of Title 19 of the Code of Federal Regulations (19 C.F.R. Part 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 Seth Mazze at [email protected].
Sincerely,
Steven A. Mack
Director
National Commodity Specialist Division