CLA-2-94:OT:RR:NC:N4:433
Suzanne Lagay Kay
Manage of Tax & Treasury Services
Franco Manufacturing Company, Inc.
555 Prospect Street
Metuchen, NJ 08840-2293
RE: The tariff classification of a troll protector sword from China.
Dear Ms. Kay:
In your letter dated March 14, 2018, you requested a tariff classification ruling. Description, photographs and two samples were received.
Style number PC999T is identified on the hangtag label as the “DreamWorks TrollHunters Tales of Arcadia Pillow.” Affixed to the hangtag is a smaller barcode label further describing the merchandise concerned as the “Troll Hunters Troll Protector.” The item is marketed and sold under the “NetFlix Trollhunters Bedding Collection,” of which the merchandise concerned is listed as the “Netflix Trollhunters Sword Throw Pillow.” The overall dimensions of this item is 25 inches long by 5.5 inches thick. This item is in the shape of a sword, and has a 100% polyester canvas covering, stuffed with 100% polyester fiber filling. Online research indicates at the website of [target.com] that the merchandise concerned is one of nine items in the “NetFlix Trollhunters Bedding Collection.”
When terms are not defined in the Harmonized Tariff Schedule of the United States (HTSUS) or the Explanatory Notes (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.”
Heading 9404 in pertinent part reads “… articles of bedding and similar furnishings ….,” and as such, we are of the opinion that the Troll Hunters Troll Protector in the shape of a stuffed sword (Netflix Trollhunters Sword Throw Pillow), being one of nine items in a bedding collection, falls within the plain language of the heading, especially the greater term “… articles of bedding .…” Accordingly, the decorative throw or accent pillow of the merchandise concerned is classifiable in heading 9404, HTSUS.
The applicable subheading for the “DreamWorks TrollHunters Tales of Arcadia Pillow” 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