H330361

HQ H330361 September 26, 2024 OT:RR:CTF:CPMMA H330361 NAH CATEGORY: Classification TARIFF NO: 9503.00.00 Ms. Laty Chaykeo International Trade Analyst Ascena Retail Group, Inc. 112 Heritage Pataskala, OH 43062 RE: Revocation of NY N306312; Tariff classification of a plush stuffed pillow from China. Dear Ms. Chaykeo: This letter is in reference to New York Ruling Letter (“NY”) N306312, dated October 18, 2019, concerning the tariff classification a cheetah pillow that is a member of a merchandise line of stuffed pillows depicting various animals (cat, panda, fox, etc.) referred to as “Squishmallows®.” In NY N306312, U.S. Customs and Border Protection (“CBP”) classified the cheetah Squishmallows® under heading 9404, Harmonized Tariff Schedule of the United States (“HTSUS”), and specifically under subheading 9404.90.20, 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.” We have reviewed NY N306312 and determined that the ruling is in error. Accordingly, for the reasons set forth below, CBP is revoking NY N306312. Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. § 1625(c)(1)), as amended by section 623 of Title VI (“Customs Modernization”) of the North American Free Trade Agreement Implementation Act, Pub. L. No. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed action was published on July 31, 2024, in Volume 58, Number 30, of the Customs Bulletin. One comment was received in support of the proposed action. FACTS: The merchandise at issue was described in NY N306312, as follows: The cheetah Squishmallows® is an asymmetrical, oval, plush pillow in the likeness of a forward-facing, cheetah with black applique eyes, an off-white applique belly and an off-white applique snout with a black embroidered nose and mouth. A cheetah-print fabric covers all surfaces, including the ears extending from either side of the “head” and the tail, sewn onto the back. The Squishmallows® measures approximately 18” x 17” x 4” (H x W x D at its deepest) and is stuffed with a polyester fiberfill. We note that the Squishmallows® has neither arms nor legs, and the head and torso form one body part. The company website says that Squishmallows® offer comfort, support and warmth as couch companions, pillow pals, bedtime buddies and travel teammates. ISSUE: What is the proper tariff classification of the Squishmallows® cheetah. LAW AND ANALYSIS: Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that 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. GRI 6 provides that for legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. The 2024 HTSUS provisions under consideration are as follows: 9404 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: 9503 Tricycles, scooters, pedal cars and similar wheeled toys; dolls’ carriages; dolls, other toys; reduced-scale (“scale?) models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereof Note 1(x), Chapter 95, HTSUS, excludes from classification in Chapter 95 “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).” In understanding the language of the HTSUS, the Explanatory Notes (“ENs”) of the Harmonized Commodity Description and Coding System, which constitute the official interpretation of the HTSUS at the international level, may be utilized. The ENs, while neither dispositive nor legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989). The ENs to heading 9404, HTSUS, states, in pertinent part, the following: This heading covers: … (B) Articles of bedding and similar furnishing which are sprung or stuffed or internally fitted with any material (cotton, wool, horsehair, down, synthetic fibres, etc.), or are of cellular rubber or plastics (whether or not covered with woven fabric, plastics, etc.). The ENs to heading 9503, HTSUS, states, in pertinent part, the following: This heading covers: (D) Other toys. This group covers toys intended essentially for the amusement of persons (children or adults). However, toys which, on account of their design, shape or constituent material, are identifiable as intended exclusively for animals, e.g., pets, do not fall in this heading, but are classified in their own appropriate heading. This group includes: … (i) Toys representing animals or non-human creatures even if possessing predominantly human physical characteristics (e.g., angels, robots, devils, monsters), including those for use in marionette shows. * * * * * In NY N306312, dated October 18, 2019, the decision to classify the cheetah Squishmallows® as a pillow under heading 9404, HTSUS, was based on differentiating the Squishmallows® from the “pillow pets” classified in Headquarters Ruling Letter (“HQ”) H161002, dated March 30, 2012 (classifying “pillow pets,” stuffed articles that depict various types of animals such as unicorns, bumble bees, alligators, cows, dogs, and ducks, under heading 9503, HTSUS) and determining the cheetah Squishmallows® was similar to products addressed in NY N296006, dated April 27, 2018 (classifying a Minnie Mouse Emoji Plush Pillow and the Mickey Mouse Emoji Plush Pillows under heading 9404, HTSUS) and NY N250031, dated February 21, 2014 (classifying “plushes” designed to appear as daisies or butterflies under heading 9404, HTSUS). However, since NY N306312 was published, CBP examined other Squishmallows® in HQ H325768, dated December 22, 2023, and CBP classified the Squishmallows® as toys. In light of that decision, CBP must reexamine whether the cheetah Squishmallows® is a toy or a pillow. Note 1(x) to Chapter 95, HTSUS, explicitly excludes utilitarian items from being classified as toys, therefore CBP’s examination of the cheetah Squishmallows® must begin with whether it is excluded from Chapter 95, HTSUS. The term “toy” is not defined in the HTSUS, the General Explanatory Notes to Chapter 95, HTSUS, state that the “Chapter covers toys of all kinds whether designed for the amusement of children or adults.” Insofar as it pertains to toys, the Court of International Trade construes heading 9503, HTSUS, to be a “principal use” provision. See Minnetonka Brands v. United States, 110 F. Supp. 2d 1020, 1026 (Ct. Int’l Trade 2000). Thus, to be a toy, the “character of amusement involved [is] that derived from an item which is essentially a plaything.” Wilson’s Customs Clearance, Inc. v. United States, 59 Cust. Ct. 36, C.D. 3061 (1967). In Processed Plastic Co. v. United States, 473 F.3d 1164 (Fed. Cir. 2006), the court held that “the principal use of a “toy” is amusement, diversion, or play … rather than practicality.” To assist in the determinati

Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that 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.GRI 6 provides that for legal purposes, the classification of goods in the subheadings of a heading shall be determined according to the terms of those subheadings and any related subheading notes and, mutatis mutandis, to the above rules, on the understanding that only subheadings at the same level are comparable. The 2024 HTSUS provisions under consideration are as follows:9404 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: 9503 Tricycles, scooters, pedal cars and similar wheeled toys; dolls’ carriages; dolls, other toys; reduced-scale (“scale?) models and similar recreational models, working or not; puzzles of all kinds; parts and accessories thereofNote 1(x), Chapter 95, HTSUS, excludes from classification in Chapter 95 “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).”In understanding the language of the HTSUS, the Explanatory Notes (“ENs”) of the Harmonized Commodity Description and Coding System, which constitute the official interpretation of the HTSUS at the international level, may be utilized. The ENs, while neither dispositive nor legally binding, provide a commentary on the scope of each heading,