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HQ 957617




May 3, 1995
C.A.-2 R:C:T 957617 jb

CATEGORY: CLASSIFICATION

TARIFF NO.: 9404.90.2000

David A. Eisen, Esq.
Siegel, Mandell & Davidson, P.C.
One Astor Plaza
1515 Broadway, 43rd Floor
New York, NY 10036-8901

RE: Classification of "Mud Cloth Pillow"; heading 9404, HTSUSA; sufficient in size to provide support

Dear Mr. Eisen:

This is in regard to your letter, dated December 29, 1994, on behalf of your client, Avon Products, Inc., requesting tariff classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), for a small pillow. A sample was provided to this office for examination.

FACTS:

The submitted sample is a small square-shaped pillow referred to as a "Mud Cloth Pillow". The shell of the pillow is composed of woven 65 percent polyester and 35 percent cotton printed fabric and it is stuffed with a 100 percent polyester fiber fill. In its stuffed condition the pillow is slightly larger than 10 inches square and it is approximately 3-1/2 inches thick at the center. The unstuffed shell would measure approximately 12 inches square.

You believe that the subject pillow should be classified in the provision for other made up articles in heading 6307, HTSUSA. In support of this claim you state that:

1. the pillow is not more specifically described as an article of bedding under heading 9404, HTSUSA, because the pillow is not designed or capable of being used to cushion or support the head or body during sleep. Rather, it is decorative in nature;

2. classification as an other made up article is in accordance with Headquarters Ruling Letter (HQ) 086646, dated June 8, 1990; HQ 087316, dated July 9, 1990; and New York Ruling Letter (NY) 883688, dated March 24, 1993.

ISSUE:

Whether the subject pillow is properly classifiable in heading 9404, HTSUSA, in the provision for articles of bedding and similar furnishing or in heading 6307, HTSUSA, as an other made up article?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is in accordance with the General Rules of Interpretation (GRI). GRI 1 requires that classification be determined according to the terms of the headings and any relative section or chapter notes. Where goods cannot be classified solely on the basis of GRI 1, the remaining GRI will be applied, in the order of their appearance.

Heading 9404, HTSUSA, provides for, inter alia, 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. You claim that the subject pillow is too small to provide support and thus cannot be classifed in heading 9404, HTSUSA. Size specifications are neither explicitly outlined in the terms of heading 9404, HTSUSA, nor the Explanatory Notes to the Harmonized Commodity Description and Coding System (EN), to that heading. It is the opinion of this office that so long as pillows are sufficient in size and stuffing to be capable of providing support, classification in heading 9404, HTSUSA, is not excluded.

Heading 6307, HTSUSA, provides for, inter alia, other made up articles. The EN to heading 6307, HTSUSA, state:

This heading covers made up articles of any textile material which are not included more specifically in other headings of Section XI or elsewhere in the Nomenclature.

Heading 6307, HTSUSA, is a basket provision wherein a variety of merchandise is classified when no other heading more specifically provides for given merchandise. This is not the situation in this case. The subject "Mud Cloth Pillow" is more accurately described within the provisions of heading 9404, HTSUSA. Furthermore, the cases you cited, specifically HQ 086646 (regarding decorative pillows in the shape of a motorcycle and the shape of a punching bag), HQ 087316 ( regarding a ring bearer pillow, a baby's sleeping sign and a tooth fairy pillow) and NY 883688 (regarding pillows with battery operated lights on the front) were either much smaller than the instant sample or were specialty pillows in the shape of different figures or objects. The pillows did not qualify for classification in heading 9404, HTSUSA, because they were not designed to afford support; the filling in those pillows merely provided shape to the pillows. See also HQ 951533, dated June 17, 1992, regarding a "Beast" pillow and HQ 951737, dated June 8, 1992, regarding a "Belle" pillow, which were similarly classified in heading 6307, HTSUSA. The submitted "Mud Cloth Pillow" could be used for support, as for example, if placed along the spine of a chair to provide support to the lower back. The filling as such, does not merely provide shape to the pillow, but also offers support.

HOLDING:

The subject "Mud Cloth Pillow" is classifiable in subheading 9404.90.2000, HTSUSA, 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 applicable rate of duty is 6 percent ad valorem.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification), and the restraint (quota/visa) categories, your client should contact the local Customs office prior to importing the merchandise to determine the current status restraints or requirements.

Sincerely,

John Durant, Director

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