CLA-2-94:OT:RR:NC:N4:463
Joseph J. Kenny
Geodis USA Inc.
One CVS Dr.
Woonsocket, RI 02895
RE: The tariff classification of two decorative pillows made in China
Dear Mr. Kenny:
In your letter dated February 1, 2023, you requested a binding classification ruling on behalf of your client, CVS Pharmacy, Inc. for two decorative pillows, a skull-shaped pillow, item no. 502844, and a pumpkin-shaped pillow, item no. 517592. In lieu of samples, illustrative literature and product descriptions were provided.
The Skull Pillow, item no. 502844, is a skull-shaped decorative pillow, consisting of a 100% knit polyester shell with a 100% polyester filling. The pillow shell is printed with a stylized multi-colored skull face on white fabric in a Day of the Dead or calavera motif. It comes in two styles, but with only one item number. The pillow measures 14" tall by 10" wide by 4" deep. There are no protruding appendages. The requester states that the pillow is marketed and sold during the Halloween season for decorative purposes and that it is not intended to support the head or another body part. The pillow is made is China. See image below:
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The Pumpkin Pillow, item no. 517592, is an orange pumpkin-shaped decorative pillow, consisting of a 100% knit polyester shell with a 100% polyester filling. It has a protruding knit stem and an attached green fabric leaf. It measures 14.5" tall by 15.5" wide by 4" deep. The requester states that the pillow is marketed and sold during the Halloween season for decorative purposes and is not intended to support the head or another body part. The pillow is made is China. See image below:
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You suggest that the Skull Pillow, item no. 502844, be classified in subheading 9505.90.6000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for “Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof: Other: Other.” We disagree.
You suggest that the Pumpkin Pillow, item no. 517592, be classified in subheading 6307.90.9891, HTSUS (Other made up articles, Other: Other: Other: Other: Other). We disagree. Alternatively, you suggest that this article be classified in subheading 9404.90.2090, HTSUS (Pillows, cushions and similar furnishings: Other, Other). We agree.
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,” 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.”
With respect to the Skull Pillow, item no. 502844, we note that notwithstanding the playful Day of the Dead, calavera motif, the article’s dimensions (14" x 10" x 4") allow the pillow to support a body part, thus making it utilitarian as well as decorative. HTSUS Chapter 95 Note 1(x), specifically excludes “Tableware, kitchenware, toilet articles, carpets and other textile floor coverings, apparel, bed linen, table linen, toilet linen, kitchen linen and similar articles having a utilitarian function (classified according to their constituent material).” This item falls within the plain language of the heading 9404, HTSUS, as a “pillow”. (See N283864, N295248, N296006, and H285904.)
With respect to the Pumpkin Pillow, item no. 517592, 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, which lists “pillows” is more specific than heading 6307, which states “Other made up articles, including dress patterns”.
These items fall within the plain language of the heading 9404, HTSUS. Accordingly, the pillows are classifiable in subheading 9404.90, HTSUS.
The applicable subheading for the Skull Pillow, item no. 502844, and the Pumpkin Pillow, item no. 517592, 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.
Pursuant to U.S. Note 20 to Subchapter III, Chapter 99, HTSUS, products of China classified under subheading 9404.90.2090, HTSUS, unless specifically excluded, are subject to an additional 7.5% 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.
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