CLA-2 OT:RR:CTF:TCM H185719 RES
U.S. Customs and Border Protection
Service Port – Dallas/Fort Worth
P.O. Box 619050 DFW Airport, TX 75261-9050
ATTN: Joyce VerMehren, Import Specialist
RE: Internal Advice Request No. 11/028; Tariff classification of a “Cool Gelmat”
Dear Port Director:
This is in response to your memorandum forwarding a request for internal advice dated June 29, 2011, filed by Fred Hall and Associates, Inc. on behalf of Southern Enterprises, Inc. (“Southern”). The internal advice request concerns the tariff classification of a “Cool Gelmat” (“Gelmat”) under the Harmonized Tariff Schedule of the United States (“HTSUS”). A sample was provided and will be returned.
FACTS:
The article at issue is referred to as a “Cool Gelmat.” It is described as follows:
The gelmat is intended to be placed on top of a bed mattress or under the sheet, and provide a cool feeling when in contact with the body. The outer case is constructed from 100% cotton and polyvinyl chloride. The filling material is a special eco-friendly gel.
In addition, an examination of the sample reveals that the Gelmat is 54” by 35.43” in size and about less than ¼” thick. The textile side of the coated fabric forms the outside of the mat. The fabrics are fused together at specific points. The edges of the mat are finished with a fabric binding. The Gelmat does not completely cover the upper surface of a mattress. It is sized to be used under the core of a person’s body. The directions on the box instruct a user to place the Gelmat on top of the mattress or under a sheet and then for the user to sleep on top of it. The article cools through the process known as thermal conduction, wherein heat is transferred from a person to the Gelmat.
ISSUE:
What is the classification of the “Cool Gelmat”?
LAW AND ANALYSIS:
Classification under the HTSUS 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 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 GRI 2 through 6 may be applied in order.
The following HTSUS provisions are under consideration:
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
Other
Other
* * *
9404.90.95 Other
9404.90.9505 With outer shell of cotton
9404.90.9522 With outer shell of man-made fibers
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 Harmonized System at the international level, may be utilized. The ENs, although not dispositive or 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 2012 ENs to Chapter 94 provide in pertinent part:
* * * * *
This Chapter covers, subject to the exclusions listed in the Explanatory Notes to this Chapter:
* * *
(2) Mattress supports, mattresses and other articles of bedding or similar furnishing, sprung, stuffed or internally fitted with any material, or of cellular rubber or plastics, whether or not covered (heading 94.04).
* * * * *
The 2012 ENs to 94.04 provide in pertinent part:
* * * * *
(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.). For example:
(1) Mattresses, including mattresses with a metal frame.
(2) Quilts and bedspreads (including counterpanes, and also quilts for baby carriages), eiderdowns and duvets (whether of down or any other filling), mattress protectors (a kind of thin mattress placed between the mattress itself and the mattress support), bolsters, pillows, cushions, pouffes, etc.
(3) Sleeping bags
* * * * *
(Emphases in original).
The importer argues that the article at issue is correctly classified in subheading 9404.90.95, HTSUS, based on New York Ruling N023121, dated February 22, 2008. The article described in that ruling was described as a mattress topper, comprised of a foam base with three gel sections, measuring three inches in thickness with a nylon and vinyl cover. As described supra, the Gelmat is laid on top of a bed mattress or under a sheet and a person then lies on top of the Gelmat while sleeping. Articles that are used in/on a bed are classifiable under heading 9404, HTSUS, which provides for “articles of bedding and similar furnishings.” The question then is whether the Gelmat is considered an article of bedding or a similar furnishing for classification purposes.
The word bedding is commonly accepted to include those items connected with a bed, including sheets, blankets, bed pads for sleeping, or other coverings. See Bauerhin Technologies Limited v. United States 19 C.I.T. 1441, 1446 (1995), aff’d, 110 F.3d 774 (Fed. Cir. 1997). In addition, “heading 9404 refers to articles ‘fitted with springs or stuffed or internally fitted with any material.” Bauerhin Technologies Limited v. United States, 110 F.3d 774, 778 (Fed. Cir. 1997). The phrase “any material” is expansive as there is nothing in the HTSUS or the ENs that excludes any particular type of material from being used as stuffing or filling in an article of bedding or limits the type of materials that are acceptable as stuffing or filling.
In regard to the Gelmat, because it is stuffed with a material, is used on top of a bed, and a person lies on it while sleeping, the Gelmat meets the definition of an article of bedding. Although smaller, it is akin to mattress pads and mattress toppers, and is classifiable under heading 9404, specifically subheading 9404.90.9505, HTSUSA, as an article of bedding or similar furnishing, stuffed or internally fitted with any material.
Therefore, the “Cool Gelmat” is classifiable under subheading of 9404.90.9505, HTSUSA, as “[m]attress 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: [o]ther: [o]ther: [o]ther: [o]ther: [w]ith outer shell of cotton.”
HOLDING:
Pursuant to GRI 1, the “Cool Gelmat” is classified under subheading 9404.90.9505, HTSUSA, as “[m]attress 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: [o]ther: [o]ther: [o]ther: [o]ther: [w]ith outer shell of cotton.” The column one, rate of duty, is 7.3 percent ad valorem.
Sixty (60) days from the date of the decision, the Office of International Trade, Regulations and Rulings, will make this decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division