HQ 964922

May 22, 2001

CLA-2 RR:CR:TE 964922 BAS

CATEGORY: Classification

TARIFF NO.: 6307.90.9989

Ms. Pilar Dorfman

E. Besler & Company

115 Martin Lane

Elk Grove Village, Illinois 60007-1309

RE: Stuffed Pillow-like Article in Form of a Butterfly

Dear Ms. Dorfman:

This is in reply to your letter, dated February 12, 2001, to the U.S.
Customs Service office in Chicago, Illinois, on behalf of LTD
Commodities Incorporated, requesting a binding ruling concerning the
classification, under the Harmonized Tariff Schedule of the United
States Annotated (HTSUSA) of a pillow-like object shaped like a
butterfly. You submitted a sample for examination. Your letter, together
with the sample, was referred to this office for reply.

FACTS:

The merchandise, referred to as IXI -- Butterfly Pillow, is a
pillow-like article designed and shaped to resemble a butterfly. The
item has been cut to the shape of and silk screen-printed to resemble a
butterfly. It measures approximately 21 by 15 ½ by six inches. The outer
shell is made from a 100% polyester woven fabric and it is stuffed with
a polyester fiberfill.

ISSUE:

What is the classification for the butterfly shaped stuffed article?

LAW AND ANALYSIS:

Classification under the Harmonized Tariff Schedule of the United States
Annotated (HTSUSA) is made in accordance with the General Rules of
Interpretation (GRI). 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. In the event that
the goods cannot be classified solely on the basis of GRI 1, and if the
headings and legal notes do not otherwise require, the remaining GRIs
may then be applied. The Harmonized Commodity Description and Coding
System, Explanatory Notes (ENs), represent the official interpretation
of the Harmonized System at the international level (for the 4 digit
headings and the 6 digit subheadings) and facilitate classification
under the HTSUSA by offering guidance in understanding the scope of the
headings and GRIs.

The HTSUS provisions under consideration are as follows:

6307. Other made up articles, including dress patterns:

      90. Other:

6307.90.99 Other

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:

      90. 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

9503.90.00 Other

Chapter 95, HTSUSA, covers toys of all kinds, whether designed for the
amusement of children or adults. Although the term "toy" is not
specifically defined in the tariff, the ENs 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,
C.A.D. 1022 1971), found that an article may be a toy within Chapter 95
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.

Where merchandise might have another purpose in addition to providing
amusement, the primary purpose of the item must be its amusement value
in order to be classified as a toy. *See* HQ 960479, dated November 24,
2000 (the primary use of a pillow-like article designed to resemble
various animals and creatures is in its amusement value and not in its
use as a pillow-like object); HQ 958785, dated July 26, 1996 (a "Lean On
Me Activity Bolster" for a small child was properly classifiable in
heading 9503 because the primary use of the item was as a toy); and HQ
951309, dated April 26, 1993 (the primary value of M & M novelty figures
designed as lids for containers filled with candy was the play value;
the utilitarian aspect of the merchandise is temporary and incidental to
the amusement factor).

It is Customs view, based on examination of the merchandise and the
catalog which describes it, that the primary purpose of the Butterfly
Pillow is not to amuse. The marketing of the Butterfly Pillow evidences
the fact that it is not principally designed for amusement but rather
for decoration. The brochure describing the butterfly pillow reads:

> Add a splash of color to any bed or chair with these uniquely bright
> colored pillows.

The advertisement describes the Butterfly Pillow as "Decorative &
Comfortable!" In the brochure the pillow is placed on a wicker chair
next to a book. It is clear that the primary purpose of the design of
the butterfly is to be decorative. In addition, while some might find
the pillow aesthetically pleasing, it is not amusing or entertaining.
For these reasons it is Customs opinion that the Butterfly Pillow does
not meet the requirements needed to be classified as a toy under heading
9503, HTSUSA.

Having excluded classification under heading 9503, a determination must
be made as to whether the subject merchandise is classifiable under
heading 9404 as a pillow, 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 "1 a: 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
"CUSHION, PILLOW, BOLSTER agree in being cases filled with a material
more or less resilient, intended to be used a 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...."

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.
*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. In
HQ 086646 (June 8, 1990), Customs ruled that pillows shaped like
motorcycles and punching bags were not designed to offer support to the
sleeper. Where a stuffed article is of a small size, Customs has found
that the article is not classifiable in heading 9404, HTSUSA. *See* HQ
087316 (July 9, 1990), regarding a ring bearer's pillow, a baby's
sleeping sign and a tooth fairy pillow; HQ 086056 (March 1, 1990),
finding a 6 inch sachet-type pillow is not classified in heading 9404,
HTSUSA; HRL 046377 (October 19, 1976), ruling that a 4" x 6" tooth fairy
pillow is too small to support the head or body and therefore may not be
classified as a pillow, cushion, mattress or similar furnishing.

In the instant case, the awkward shape and construction of the butterfly
pillow would make it quite uncomfortable as support for the head and
neck. The purpose of the filling appears to be to give the butterfly
shape as opposed to support of the head and neck. In addition, by virtue
of the shape of the butterfly, the pillow-like object has minimal
surface area in its center making it awkward for use as a pillow. The
body of the butterfly is also much harder than the wings and would be
very uncomfortable to use as a pillow. The texture of the material,
moreover, would make it very uncomfortable as a support for the body.
Accordingly, the pillow-like article resembling a butterfly is more akin
to a specialty pillow, one designed in the shape of a different object
or figure than an ordinary pillow used as an article of bedding and is
therefore not properly classifiable as an article of bedding under
heading 9404, HTSUSA.

Having eliminated more specific provisions, we turn to heading 6307,
HTSUSA, which provides for other made up articles of textiles. Section
Note 7 (e) of Section XI , states as follows:

> 7\. For the purposes of this Section the expression "made up" means in
> pertinent part,
>
> \(e\) Assembled by sewing.....

The instant article has been assembled by sewing, therefore it
constitutes a made up textile article. The ENs regarding heading 6307
state as follows:

> 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.

Customs has found pillows that are not capable of supporting the head
are not classifiable in heading 9404, and instead are classifiable in
heading 6307. (*See e.g.* HQ 089446 dated September 5, 1991; HQ 086446
dated June 8, 1990; HQ 087446 of July 16, 1990; and HQ 087316 of July 9,
1990.

Since the Butterfly pillow-like object is not included in any more
specific heading it is classifiable in heading 6307, HTSUSA, as an other
made up article.

HOLDING:

The Butterfly Pillow with an outer shell made of 100% polyester woven
fabric and stuffed with a polyester fiberfill is classifiable in
subheading 6307.90.9989, HTSUSA which provides for "Other made up
articles, including dress patterns: Other: Other: Other: Other: Other."

The general column one rate of duty is 7 percent *ad valorem*. There is
no textile quota category applicable to this provision.

Sincerely,

John Durant, Director

Commercial Rulings Division