The tariff classification of a cushion pillow from China.

N282114 January 13, 2017 CLA-2-94:OT:RR:NC:N4:433 CATEGORY: Classification TARIFF NO.: 9404.90.2000 David Prata Trade Compliance Analyst GEODIS / Freight Forwarding CVS Health 1 CVS Drive, Mail Code 5055 Woonsocket, RI 02895 RE: The tariff classification of a cushion pillow from China. Dear Mr. Prata: In your letter dated December 15, 2016, on behalf of CVS Pharmacy, you requested a tariff classification ruling. A description of the merchandise concerned, along with a sample, was provided. As requested, the sample submitted will be returned to you. CVS SKU number 235539 is identified on the sample as the “16 inch Signable GradMoji, Pen Included.” The merchandise concerned is a 16 inch round, cushion pillow that is styled to resemble a smiley face emoticon wearing a mortarboard which projects from the top of the pillow. Attached to the mortarboard is a blister card package which identifies the merchandise concerned and contains a felt-tipped pen. The felt-tipped pen is used for collecting autographs and recording personal messages of close friends and associates at a graduation ceremony for remembrance purposes. This item is stuffed with 100% polyester fill and has an outer shell made of 100% polyester. When interpreting and implementing the Harmonized Tariff Schedule of the United States (HTSUS), the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, while neither legally binding nor dispositive, provide a guiding commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. CBP believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). The ENs to the HTSUS, General Rules of Interpretation (GRIs), at GRI 3 (b), X, provides that the term “goods put up in sets for retail sale” means goods that: (a) consist of at least two different articles which are, prima facie, classifiable in different headings; (b) consist of articles put up together to meet a particular need or carry out a specific activity; and (c) are put up in a manner suitable for sale directly to users without repacking. Goods classifiable as “sets” under GRI 3 (b) of the HTSUS are classified as if they consisted of the component or components taken together, which can be regarded as conferring on the set as a whole its essential character – see EN X to the GRIs. We find that the merchandise concerned is a set for tariff purposes, in that the cushion pillow is classifiable in heading 9404 of the HTSUS and the felt-tipped pen is classified in heading 9608 of the HTSUS; the felt-tipped pen is the recording instrument for the autographs and messages to be placed on the cushion pillow; and the cushion pillow and felt-tipped pen are packaged for retail sale directly to purchasers without being repacked. It is our opinion that the essential character of the set is imparted by the cushion pillow, because it provides the recording surface for the autographs, with or without messages. You inquire whether the cushion pillow is a “toy” and should be classified in heading 9503 of the HTSUS. See New York ruling number N250031 dated February 21, 2014, in which CBP ruled that in order to be classified as a toy, the item “must be full figured or reasonably full figured, and have a depiction of the animal or creature it seeks to represent, and that the figure must be a soft, sculptured edition or an articulation in three dimensions of the head, torso and appendages of the character being portrayed.” Further, the item is not principally designed for amusement, but rather closely resembles a fully functioning cushion pillow or accent pillow, which is sufficient in size and stuffing to be capable of providing support, or accenting a person’s bed, chair, couch and the like. The applicable subheading for the “16 inch Signable GradMoji, Pen Included” 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 neil.h.levy@cbp.dhs.gov. Sincerely, Steven A. Mack Director National Commodity Specialist Division