CLA-2-94:OT:RR:NC:N4:463
Donna Huggins
Franco Manufacturing Co. Inc.
555 Prospect Street
Metuchen, NJ 08840
RE: The tariff classification of a microphone-shaped decorative pillow from China
Dear Ms. Huggins:
This letter is being issued in reply to your letter dated February 14, 2023, requesting a tariff classification determination. In lieu of samples, illustrative literature and a product description were provided.
Per the submitted information, the subject article is the “Trolls 3 Mic Drop” pillow, style no. PW224D (in the shape of a standard hand-held microphone) and is described as consisting of a short-pile 100% polyester Velboa knit fabric outer shell with a 100% polyester fill. It measures 18" (L) x 8.5" (W) at its widest point and only a couple of inches deep (knife-edge type construction). The pillow has no electrical components. The front and back of the pillow are each printed with the image of a stylized microphone with a dancing troll on the microphone grip. The pillow is made in China.
With respect to how the article will be marketed, you state that the pillow will be sold in the bedding section of a major retailer with other Trolls 3 movie items, including assorted pillows, bedding, and a throw.
You suggest classification of the “Trolls 3 Mic Drop” pillow in subheading 9503.00.0073, Harmonized Tariff Schedule of the United States (HTSUS), which provides for “Tricycles, scooters, pedal cars and similar wheeled toys…dolls, other toys…puzzles of all kinds; parts and accessories thereof… “Children’s products” as defined in 15 U.S.C. § 2052: Other: Labeled or determined by importer as intended for use by persons: 3 to 12 years of age.” We disagree. The merchandise concerned is not principally designed for amusement, but rather to be used as a decorative article of bedding to be placed on a bed, chair, sofa or the like. Because the merchandise concerned is not principally designed for amusement but rather serves as a decorative article, it cannot be classified as a toy. See HQ 964006.
Classification under the 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.
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” or “decorative 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 Bauerhin 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.”
Based upon the aforementioned information, this item falls within the plain language of heading 9404, HTSUS. The applicable subheading for the “Trolls 3 Mic Drop” pillow, style no. PW224D, will be subheading 9404.90.2090, 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, Other.” The general rate of duty will be 6% ad valorem.
Products of China classified under subheading 9404.90.2090, HTSUS, unless specifically excluded, are subject to the 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 9404.90.2090, HTSUS, listed above.
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 the internet at https://hts.usitc.gov/current.
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