CLA-2 OT:RR:CTF:TCM H019436 GC
Donald Stein, Esq.
Greenberg Traurig, LLP
800 Connecticut Avenue, NW
Suite 500
Washington, D.C. 20006
RE: Request for Reconsideration of NY N016487; tariff classification of a pillow from China
Dear Mr. Martorino:
This letter is in response to your request, dated October 3, 2007, for reconsideration of New York Ruling Letter (NY) N016487, issued by Customs and Border Protection (CBP) on September 20, 2007.
FACTS:
NY N016487 pertains to the tariff classification under the Harmonized Tariff Schedule of the United States (HTSUS) of merchandise referred to as the “SONA Sleep Apnea Avoidance Pillow” (pillow), imported from China by your client, Brookstone Company, Inc. (Brookstone). NY N016487 held that the merchandise was classifiable under subheading 9404.90.1000, HTSUSA, which provides for, in pertinent part, “…articles of bedding and similar furnishing (for example… pillows) …stuffed…, whether or not covered: Other: Pillows, cushions, and similar furnishings: Of cotton”.
The pillow measures approximately 10 x 12 x 27 inches and consists of a pillow form and cover. The outer shell is made from cotton woven fabric, and it is stuff with a polyester filler. The cover is also made from cotton woven fabric and features a zipper closure. The top of the pillow has a convex shape, with an approximately 45 degree incline on both sides, and a flat base containing two recesses on the underside of the pillow. The convex shape on the top of the pillow encourages the user to sleep on his or her side, while the base of the pillow facilitates this purpose by providing the recesses into which the user can place his or her arm, thereby reducing snoring as well as the case of mild to moderate cases of sleep apnea. As a result of this function, the U.S. Food and Drug Administration (FDA) has designated the subject merchandise as a Class II therapeutic cervical pillow for snoring and mild sleep apnea.
You request that we reconsider NY N016487, and propose that the subject merchandise be classified under heading 9019, HTSUS, as an “ozone therapy, oxygen therapy, aerosol therapy, artificial respiration or other therapeutic respiration apparatus”.
ISSUE:
What is the proper classification under the HTSUS for the subject merchandise?
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). 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 2 through 6 may then be applied in order.
The HTSUS provisions under consideration in this case are as follows:
9019 Mechano-therapy appliances; massage apparatus; psychological aptitude-testing apparatus; ozone therapy, oxygen therapy, aerosol therapy, artificial respiration or other therapeutic respiration apparatus; parts and accessories thereof:
* * *
9019.20 Ozone therapy, oxygen therapy, aerosol therapy, artificial respiration or other therapeutic respiration apparatus; parts and accessories thereof
* * *
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:
9404.90 Other:
Pillows, cushions and similar furnishings:
9404.90.10 Of cotton
Additional U.S. Rule of Interpretation 1(a) states that, in the absence of special language which otherwise requires, a tariff classification controlled by use (other than by actual use) is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use. Accordingly, the classification under the HTSUS of the subject merchandise will be according to its principal use.
In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) may be utilized. The ENs, though not dispositive or legally binding, provide commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. CBP believes the ENs should always be consulted. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
Part V of the EN to heading 9019, HTSUS, which covers “Oxygen therapy, artificial respiration or other therapeutic respiration apparatus”, provides, in pertinent part:
These are used in cases of drowning, electrocution, acute poisoning (e.g., carbon monoxide), for weak newly born babies, post-operative shock, infantile paralysis (poliomyelitis), acute asthma, insufficient lung development, etc.
These appliances include:
Appliances used instead of manual methods of artificial respiration, e.g., mechanical devices operating by bringing pressure to bear on the patient’s chest, by a rocking movement, by forced inhalation, etc.
Oxygen therapy appliances proper. These operate either by inhalation of oxygen or of a mixture of oxygen and carbon dioxide through a mask, or by feeding oxygen into a respiratory chamber consisting of a tent of transparent plastics fitted to the patient’s bed.
Appliances known as “iron lungs” and the like. These consist generally of:
A chamber, made of metal, wood or glass fibre, to accommodate the patient’s body (the head remaining outside), or a smaller chamber of transparent plastics covering only the chest.
An independent unit comprising an air suction system and an emergency blower which may be power- or hand-operated.
A thick air-tight tub connecting the blower system to the chamber.
Certain oxygen therapy appliances described above (in particular oxygen tents) may also be used for administration of aerosols, the patient receiving simultaneously an inhalation of oxygen and a medicament dispersed as a micro-spray.
In NY N016487, the conclusion that the subject merchandise is classifiable in heading 9404, HTSUS, was based in part on the fact that the pillow does not fit within the scope of heading 9019, HTSUS, as described by EN 90.19. You point to the following sentence in NY N016487:
The explanation and the examples [provided in part V to EN 90.19] indicate that the therapeutic respiration apparatus of 9019 is for use on patients who will not get enough oxygen through their current breathing capabilities, not for people whose breathing is noisy or occasionally fitful.
Based on this sentence in NY N016487, you argue that the conclusion in that ruling reflects a fundamental misunderstanding of snoring and its causes. To clear up this misunderstanding, you note that snoring occurs as a result of an “obstruction to the free flow of air through passages of the back of the mouth and the nose.” Snoring is the result of the soft pallet (muscles in the roof of the mouth), tongue and throat vibrating together. This vibration is caused when air passes through the narrow passageway that forms when all three parts of the body relax to the point where the airway becomes obstructed. You also state that the subject pillow can be used to treat mild to moderate sleep apnea. Sleep apnea is a condition which occurs when the airway completely closes, with the resulting lack of oxygen causing the sleeping individual to force the airway open through snorting or gasping.
By encouraging the user to sleep on his or side, the subject pillow helps to mitigate the obstruction to the airway, thereby lessening or eliminating the snoring and treating the apnea. You contend that this function causes the pillow to fit within the scope of heading 9019, HTSUS, as a respiration apparatus, because the pillow helps facilitate the passage of air to the lungs of the sleeping individual. In support of classification as a respiration apparatus, you also note that the Food and Drug Administration (FDA) has deemed the subject merchandise a Class II therapeutic cervical pillow for snoring and mild sleep apnea, as defined in 21 C.F.R. §872.5770. This purpose, you argue, makes the subject merchandise similar to the merchandise classified in Headquarters Ruling Letter (HQ) 968245, dated September 7, 2006.
In HQ 968245, Customs and Border Protection (CBP) classified parts of a multi-dose dry powder inhaler used to deliver medicament to asthma and COPD sufferers. CBP determined that, based on the explanation provided in part (V) to the EN to heading 9019, HTSUS, the principal use of the class of goods to which the multi-dose powder inhaler belongs is therapeutic respiration and, in particular, for the treatment of asthma and COPD. As stated in the EN, therapeutic respiration apparatuses covered by heading 9019, HTSUS, are indeed used in cases of acute asthma. Thus, as the multi-dose dry powder inhaler subject to HQ 968245 was used principally to treat asthma and COPD, it was properly classified in headed 9019, HTSUS.
The term "respiration apparatus" is not specifically defined in the HTSUS or by medical dictionaries. We thus have to ascertain its meaning by looking at related terms. The term "respiration" is defined in the Merriam Webster’s Online Medical Dictionary as "a single complete act of breathing." Also, the term “apparatus” is defined in as "a collection of instruments adapted for a special purpose"; see also Stedman's Medical Dictionary 108 (25th ed. Illustrated); and as “an instrument or appliance designed for a specific operation. The above definitions combined with the list of examples offered in Part V to EN 90.19 indicate that therapeutic respiration apparatuses of heading 9019, HTSUS are sophisticated medical appliances administered or prescribed by medical practitioners to specifically address respiratory ailments of patients.
While the subject merchandise may indeed have beneficial effects in the form of limiting snoring or mitigating the effects of mild to moderate cases of sleep apnea, it is specifically a pillow. Generally speaking, a pillow’s primary function is to facilitate more comfortable rest for the sleeping individual. This is the purpose that the subject merchandise accomplishes. The fact that a chronic snorer or apnea patient may choose this particular pillow in order to sleep more comfortably (or to help his or her companion to sleep more comfortably) does not make the subject merchandise a therapeutic apparatus. In like manner, a mattress designed for individuals with chronic back problems would not be considered a medical device even if it takes the place of medical devices required to treat the same back ailments.
Even if we were to adopt the conclusion that the pillow’s primary use is to serve as a therapeutic respiration apparatus, the subject pillow still does not fit within the scope of heading 9019, HTSUS. In addition to treating cases of acute asthma, EN 90.19 states that therapeutic respiration apparatuses of heading 9019 are used in cases of drowning, electrocution, acute poisoning (e.g., carbon monoxide), for weak newly born babies, post-operative shock, infantile paralysis (poliomyelitis), insufficient lung development, etc. While the list of conditions addressed by apparatuses of heading 9019, HTSUS, is not necessarily exhaustive, the examples of appliances listed above in Part V to EN 90.19 indicate that heading 9019 covers sophisticated mechanical or electrical equipment prescribed by a doctor for the specific purpose of aiding the respiration of a patient. The subject merchandise is eo nomine provided for in heading 9404, HTSUS, as a pillow. This is a more specific classification than as a therapeutic respiration apparatus of heading 9019, HTSUS.
While the subject merchandise is considered a Class II therapeutic cervical pillow for snoring and mild sleep apnea by the FDA, this determination does not control tariff classification. Articles are classified by the FDA to protect public safety, not as guidance for classification of imported merchandise. See Amersham Corp. v. United States, 5 C.I.T. 49, 56, 564 F.Supp. 813, 817 (1983) (Noting that “statutes, regulations and administrative interpretations relating to ‘other than tariff purposes’ are not determinative of [CBP] classification disputes.”); see also HQ 085064, dated August 24, 1990 and HQ 962181, dated January 13, 1999. Recognition by the FDA that the merchandise can be used to reduce snoring or mitigate the effects of sleep apnea does not constitute a determination of its tariff classification.
HOLDING:
By application of GRI 1 the subject “SONA Sleep Apnea Avoidance Pillow” is classifiable under subheading 9404.90.1000, 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: Of cotton”. The general column one rate of duty is 5.3 per cent ad valorem. N016487, dated September 20, 2007, is thus affirmed.
Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.
The cotton pillow falls within textile category 369. With the exception of certain products of China, quota/visa requirements are no longer applicable for merchandise which is the product of World Trade Organization (WTO) member countries. The textile category numbers above apply to merchandise produced in non-WTO member-countries. Quota and visa requirements are the result of international agreements that are subject to frequent renegotiations and changes. To obtain the most current information on quota and visa requirements applicable to this merchandise, we suggest you check, close to the time of shipment, the “Textile Status Report for Absolute Quotas” which is available on our web site at www.cbp.gov. For current information regarding possible textile safeguard actions on goods from China and related issues, we refer to the web site of the Office of Textiles and Apparel of the Department of Commerce at www.otexa.ita.doc.gov.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division