United States International Trade Commision Rulings And Harmonized Tariff Schedule
faqs.org  Rulings By Number  Rulings By Category  Tariff Numbers
faqs.org > Rulings and Tariffs Home > Rulings By Number > 2001 HQ Rulings > HQ 964838 - HQ 965074 > HQ 964984

Previous Ruling Next Ruling
HQ 964984




July 2, 2001

CLA-2 RR:CR:TE 964984 BAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 9404.90.2000; 9503.41.00

Stephen W. Marlow
Supervisor Regulatory Services
Tower Group International, Inc.
205 West Service Road
Champlain, NY 12919

RE: Stuffed Pillows in the Form of a Ladybug, Daisy

Dear Mr. Marlow:

This is in regard to your letter to the U.S. Customs Service office in New York, dated March 22, 2001, on behalf of Battat, Inc., concerning the classification, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), of two designs of pillows. Your letter was referred to this office for reply.

FACTS:

The merchandise consists of two designs of pillows. The outer shell of both pillows is made from woven polyester fabric. They are stuffed with a polyester fiberfill.

The first design resembles a ladybug. It is approximately 14 x 16 inches and oval shaped. The top is cut, sewn and appliqued to depict the features of a ladybug. Two 4-inch long antenna and six 2 x 2.5 inch “legs” complete the design. The outer cover features a 12-inch zippered opening through which the bug is stuffed. After stuffing, the opening was zipped closed and the zipper pull was sewn in place.

The second item is shaped to resemble a daisy. The five petal daisy is approximately 19 inches in diameter. It consists of a cover and pillow form. The form is inserted through a side zipper that extends the length of two petals. The form is removable.

ISSUE:

What is the classification for the subject pillows?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUSA is in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that classification is determined according to the terms of the headings and any relative section or chapter notes. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI.

In interpreting the headings and subheadings, Customs looks to the Harmonized Commodity Description and Coding System Explanatory Notes (EN). Although not legally binding, they provide a commentary on the scope of each heading of the HTSUSA. It is Customs practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUSA. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The HTSUSA provisions under consideration are as follows:

Other made up articles, including dress patterns:

Other:

Other

6307.90.9989 Other

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:

9404.90.2000 Other

9503 Other toys; reduced-size (“scale”) models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof:

Toys representing animals or non-human creatures (for example, robots and monsters) and parts and accessories thereof:

9503.41.00 Stuffed toys and parts and accessories thereof

9503.49.00 Other

Chapter 95, HTSUSA, covers, among other things, toys. Although the term “toy” is not specifically defined in the tariff, the general EN to Chapter 95, indicate that this chapter covers toys of all kinds whether designed for the amusement of children or adults.

The court in United States v. Topps Chewing Gum, Inc., 58 CCPA 157, CAD 1022 1971), found that an article may be a toy if it meets the following definition:

While they may lack the material features to be a manipulative plaything as such, and will likely be used as an interesting or novelty decorative utility object, it is clear that the article, with its cartoon-like, comical appearance, or scary look is designed primarily for amusement purposes and as a source of frivolous entertainment for children and adults. In other words, its appearance generates the same type of emotional reaction one derives from playing with objects commonly recognized as toys and this use is its principle use.

The ladybug shaped pillow with its bright colors, floppy protruding antenna and legs, and unrealistic enormous size is clearly comical in appearance. It is clear that the comical appearance of the ladybug is designed primarily for amusement purposes and as a source of entertainment. Therefore, we find that the ladybug is created with the intent to amuse and is classifiable as a toy in heading 9503, HTSUSA.

Customs has classified in subheadings 9503.41 through 9503.49, HTSUSA, the provisions for toys representing animals or non-human creatures, those toy animals or creatures, which are full, or reasonably full-figured depictions of the animals or creatures which they seek to represent. The figures must be fully configured in the sense that they are an articulation of the character in three dimensions, i.e. a representation in a sculptured form. See HQ 951533 (June 17, 1992), HQ 957560 (October 12, 1995), and HQ 957617 (May 3, 1995).

In the case of Louis Marx & Co., Inc. v. United States, 66 Cust. Ct. 139, C.D. 4183 (1971), the court stated that "'figures of animate objects' must be read to mean forms or representations of humans or animals." While C.D. 4183 concerned item 737.30, Tariff Schedules of the United States (TSUS), this predecessor tariff provision corresponds to subheading 9503.41.00, HTSUSA. In HRL 079594, we stated that Customs position has been that the phrase "figures of animate objects" refers to a clearly defined configuration of an animate object in a three-dimensional form. It is, therefore, clear that there is both judicial and administrative support for the notion that the provisions for toys representing animals and non-human creatures require that a toy figure must be a full or reasonably full-figured depiction of the animal/creature it seeks to represent and that figure must be a soft, sculptured edition or an articulation in three dimensions of the head, torso, and appendages of the character being portrayed. See HQ 963390 (November 24, 2000).

In the instant case, the ladybug is a clear form or representation of an animal. It has a face, body, protruding antennae and legs. Therefore, we find that the stuffed representation of a ladybug is classifiable in subheading 9503.41.00, HTSUSA.

The daisy pillow, in contrast to the stuffed ladybug, does not have a cartoon-like, comical appearance or a scary look. We find that the primary purpose of the daisy is not to amuse. Thus the daisy pillow would be excluded from classification in heading 9503.

Having excluded classification of the daisy stuffed article from heading 9503, we must determine whether it is classifiable as a pillow in heading 9404, HTSUSA, or as an other made up article in heading 6307, HTSUSA.

A pillow is defined by Webster's Third New International Dictionary, Unabridged (1986) as "something used to support the head of a person resting or sleeping; esp: a sack or bag made typically of cloth and filled with a soft or resilient material (as feathers, down, hair, sponge rubber): CUSHION."

In defining cushions and pillows, The Random House Dictionary of the English Language, the Unabridged Edition (1983) states at p. 357, that "CUSHION, PILLOW, BOLSTER agree in being cases filled with a material more or less resilient, intended to be used as supports for the body or parts of it. A CUSHION is a soft pad used to sit, lie, or kneel on, or to lean against: a number of cushions on a sofa; cushions on pews in a church. A PILLOW is a bag or case filled with feathers, down, or other soft material, usually to support the head: to sleep with a pillow under one's head."

In HQ 963390 (November 24, 2000), Customs stated “It is the opinion of this office that so long as pillow-like articles are sufficient in size and stuffing to be capable of providing support, classification in heading 9404, HTSUSA, is not excluded.” See also HQ 962131 (November 2, 2000); HQ 957617 (May 3, 1995).

Where pillow-like objects have not been of sufficient size or stuffing to offer support, or where the construction is such that the shape or material would make it uncomfortable or unlikely to be used as a support for the body; Customs classifies these articles in heading 6307, HTSUSA, instead of 9404. If these articles do not fall within the more specific heading 9404, we turn to heading 6307, HTSUSA, which provides for “[o]ther made up articles” of textiles. Section Note 7(e) of Section XI, states that “made up” means “[a]ssembled by sewing”. The ENs regarding heading 6307 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.

See NY 883688 (March 24, 1993), regarding pillows with battery operated lights on the front; HQ 951533 (June 17, 1992), regarding a “Beast” pillow; HQ 951737 (June 8, 1992), regarding a “Belle” pillow; HQ 086646 (June 8, 1990), regarding pillows shaped like motorcycles and punching bags; regarding insufficient size, see HQ 087316 (July 9, 1990), (ring bearer’s pillow, a baby’s sleeping sign and a tooth fairy pillow).

The Daisy pillow is of large enough size and shape and is likely to be used to offer support and cradle a person’s head or to support a person’s back. Therefore, this pillows is classified in subheading 9404.90.2000, HTSUSA, which provides for pillows, cushions and similar furnishings. Because we have determined that these articles are eo nomine classifiable as pillows in subheading 9404.90.2000, HTSUSA, classification in heading 6307, HTSUSA, is not appropriate.

HOLDING:

The ladybug shaped pillow with 100 percent polyester fabric and stuffed with polyester fiberfill, is classifiable in subheading 9503.41.00, HTSUSA, as a stuffed toy. The daisy shaped pillow, with 100% polyester fabric and stuffed with polyester fiberfill, is classifiable in subheading 9404.90.2000, HTSUSA, which provides for pillows, cushions and similar furnishings.

The general column one rate of duty for the ladybug shaped pillow is free. The general column one rate of duty for the daisy shaped pillow is 6 percent ad valorem. There is currently no textile quota category applicable to these provisions.

Sincerely,

John Durant, Director
Commercial Rulings Division

Previous Ruling Next Ruling

See also: