CLA-2 RR:CTF:TCM H202117 MG
Port Director
U.S. Customs and Border Protection
1 East Bay Street
Savannah, GA 31401
Attn: Eric T. Buchanan, Supervisory Import Specialist
Re: Application for Further Review of Protest No. 1703-10-100026: Deluxe Camp Mat
Dear Port Director:
This is in response to Protest 1703-10-100026, dated January 13, 2010, filed by counsel on behalf of The Sports Authority Corporate Services, Inc. (Protestant), in response to your classification of the Deluxe camp mat (camp mat) under the Harmonized Tariff Schedule of the United States (HTSUS). A sample (SKU # 28253253) was submitted to this office with a supplemental letter, dated May 22, 2012.
According CBP Laboratory Report No. SV20100077, dated February 8, 2010, the camp mat consists of two layers, one is a black color layer composed of cellular polyurethane plastic comprising 77 percent of the mat and the other a light green colored layer composed of cellular polyethylene plastic comprising 23 percent of the mat. The camp mat measures 72” X 23.6” X 1.5” and, according to the submission, is designed and intended to be placed underneath a sleeping bag as a full size sleeping mat while camping outdoors.
According to the submission, the waterproof base layer provides insulation and protects the sleeping bag from ground moisture while the soft top layer provides cushioning for the sleeper from the hard and/or rocky or uneven ground surface. The camp mat is distributed by the Protestant and sold at sports and outdoor gear stores where camping articles are sold. According to the product information, the “Alpine Design” camp pad is sold for $19.99, sleeps one person and has an ergonomic foam design for comfort and support. It is described as being: 1 - lightweight and durable, convoluted foam provides sleeping comfort; 2 – used under a sleeping bag to keep cold and dampness off the body; and 3 – quick and easy roll-up for packing and storage (two roll-up straps are included).
On June 5, 2009, an entry of the camp mat was entered as a mattress under subheading 9404.21.00, HTSUS, which provides for: “Mattress supports; articles of bedding and similar furnishings (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: Mattresses: Of cellular rubber or plastics, whether or not covered.” On December 11, 2009, the entry was liquidated under subheading 9404.90.95, HTSUS, which provides for: “Mattress supports; articles of bedding and similar furnishings (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: Other: Other,” at a duty rate of 7.3%, ad valorem. The port cited ruling N038981, dated October 1, 2008, which involved an egg crate style polyurethane mattress topper, as the basis for classification in subheading 9404.90.95, HTSUS. This Protest and AFR were filed on January 13, 2010.
ISSUE:
What is the proper classification of the camp mat under the HTSUS?
LAW AND ANALYSIS:
Initially, we note that the matter is protestable under 19 U.S.C. §1514(a)(2) as a decision on classification and the rate and amount of duties chargeable. The protest was timely filed on January 13, 2010, within 180 days of liquidation, pursuant to 19 U.S.C. §1514(c)(3).
Further Review of Protest 1703-10-10026 was properly accorded to protestant pursuant to 19 C.F.R. § 174.24(a) and (b) because the decision against which the protest was filed is alleged to involve questions of law or fact which had not, at the time the protest was filed, been ruled upon by the Commissioner of Customs or his designee or by the Customs courts. In particular, Protestant argues that the scope of subheading 9404.21, HTSUS, and whether the instant camp mat falls within the scope of the provision for mattresses has not been previously ruled upon by Customs. Protestant further argues that the decision against which the protest was filed is alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee. Specifically, Protestant alleges that the Port’s decision is inconsistent with New York Ruling Letter (NY) E81912, dated June 8, 1999.
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.
In addition, in interpreting the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System 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 2009 HTSUS provisions under consideration are as follows:
9404 Mattress supports; articles of bedding and similar furnishings (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:
* * *
Mattresses:
9404.21.00 Of cellular rubber or plastics, whether or not covered
* * *
9404.90 Other:
Pillows, cushions and similar furnishings:
* * *
9404.90.20 Other…
* * *
Other:
Other:
9404.90.95 Other…
* * *
Because the instant classification dispute occurs beyond the four-digit heading level, GRI 6 is implicated. Specifically, the dispute at the six digit level is whether the instant camp mat is a mattress or other than a mattress.
Absent contrary legislative intent, HTSUS terms are to be “construed (according) to their common and popular meaning.’” Baxter Healthcare Corp. v. United States, 182 F.3d 1333, 1337 (Fed. Cir. 1999). The common meaning of a term used in commerce is presumed to be the same as its commercial meaning. Simod A. Corp. v. United States, 872 F.2d 1572, 1576 (Fed. Cir. 1989). “Courts may rely upon their own understanding of terms and/or consult dictionaries, encyclopedias, scientific authorities, and other reliable information.” Brookside Veneers, Ltd. v. United States, 847 F.2d 786, 789 (Fed. Cir. 1988); BASF Corp. v. United States, 798 F. Supp. 2d 1353, 1357 (2011).
The term “mattress” is not defined in the HTSUS or the ENs. The Fairchild’s Dictionary of Home Furnishings (Emmanuel Hoffman, Fairchild Publications, Inc. 1974) defines “mattress” as a pad completely filled with upholstery material and covered with ticking. The Merriam-Webster Online Dictionary defines the term “mattress” as a fabric case filled with resilient material (as cotton, hair, feathers, foam rubber, or an arrangement of coiled springs) used either alone as a bed or on a bedstead. See http://www.m-w.com (last viewed on April 14, 2016).
The term “cushion” is also not defined in the HTSUS or the ENs. The term “cushion” is defined by The Oxford Dictionary Online as a pillow or pad stuffed with a mass of soft material, used as a comfortable support for sitting or leaning on.
Heading 9404, HTSUS, and the subheadings therein, are eo nomine provisions, in that they provide for a specific commodity by name. Ordinarily, use is not a criteria considered when determining whether merchandise is embraced within an eo nomine provision. However, use may be considered in determining the identity of an eo nomine provision. See, United States v. Quon Quon Co., 46 C.C.P.A. 70, 73 (1959). Sears Roebuck & Co. v. United States, 790 F. Supp. 299, 302 (Ct. Int’l. Trade 1992); J.E. Mamiye & Sons, Inc., 509 F. Supp. at 1274; Sanji Kobata et al. v. United States, 326 F. Supp. 1397, 1402-1403 (Cust. Ct. 1971); See also Headquarters Ruling Letter (HQ) H128496, dated March 30, 2011; HQ W968275, dated January 26, 2010; HQ 964444, dated December 18, 2001; HQ 963032, dated July 24, 2000; HQ 957997, dated August 7, 1995. Sears Roebuck & Co. v. United States, 790 F. Supp. 299, 302 (Ct. Int’l. Trade 1992); J.E. Mamiye & Sons, Inc., 509 F. Supp. at 1274; Sanji Kobata et al. v. United States, 326 F. Supp. 1397, 1402-1403 (Cust. Ct. 1971); See also Headquarters Ruling Letter (HQ) H128496, dated March 30, 2011; HQ W968275, dated January 26, 2010; HQ 964444, dated December 18, 2001; HQ 963032, dated July 24, 2000; HQ 957997, dated August 7, 1995. Use is simply one of the factors, in addition to a product’s physical characteristics, to be considered in determining whether merchandise falls within the scope of an eo nomine tariff provision. Myers v. United States, 969 F. Supp. 66, 72 (Ct. Int’l. Trade 1997); See also HQ 964444; HQ 957997.
The protestant argues, through Ms. Peterson’s declaration, that the camp mat has been designed and intended for use in outdoor camping as a full size sleeping mat to be placed underneath a sleeping bag while camping outdoors. It is not used on top of a mattress or bed. (Emphasis provided). We note that protestant’s argument hinges on use in almost complete disregard for its physical characteristics. The mattress pad is used as a pad and it is particularly for that reason that we do not believe it qualifies as a mattress.
Furthermore, the vast majority of mattresses are large fabric cases, usually rectangular, filled with soft but resilient materials singly or in various combinations, including cotton, hair, feathers, foam, coiled springs, etc. A mattress is designed to provide comfort and support to the reclining body. The outer surface of a mattress may be tufted or quilted.
By contrast, the instant camp mat is 1.5” thick, which is much thinner than what is typically considered a mattress. Furthermore, the camp mat is made from two layers of plastic. The thinner base layer is waterproof and is designed to provide insulation protecting the sleeping bag from ground moisture and cold and the upper layer of the camp mat provides some degree of cushioning and support. The camp mat is designed to provide temporary comfort while camping and not for long-term use as would a mattress. The camp mat does not provide the level of cushioning and support that is typically expected from a mattress. To consider the instant camp mat a mattress would mean that any soft padded or foamed surface that a person may place their body on could be deemed a mattress. Finally, the camp mat is sold where camping goods are sold and not in mattress stores.
As noted by the Protestant, the camp mat is “virtually identical” to the foam sleeping pad classified in NY E81912, dated June 8, 1999. This foam sleeping pad is said to be made from 2 layers of plastic foam that have been laminated together. The top open cell layer has an egg crate shaped surface and will be between 1 and 1.75” thick while the closed cell bottom layer will be 3/8” thick. The pad is shaped for a mummy style sleeping bag. According to the ruling, it will be cut to specific sizes including 20 x 50, 20 x 60, 20 x 72, 22 x 72 and 25 x 77 inches. After importation the sleeping pad would be placed in a fabric sleeve. The pad at issue in this ruling was classified as a cushion in subheading 9404.90.20, HTSUS.
We agree that the sleeping pad discussed in NY E81912 is substantially similar to the instant camp mat. Accordingly, we find that the camp mat is classified in 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.” The duty rate will be 6 percent, ad valorem. As such, the instant merchandise can not be classified as “other than a cushion” in subheading 9404.90.95, HTSUS.
HOLDING:
By application of GRIs 1 and 6, the subject camp mat is classified 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.” The duty rate will be 6 percent, ad valorem.
You are instructed to deny the protest, except to the extent reclassification of the merchandise as indicated above results in a partial allowance. In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision, Regulations and Rulings of the Office of International Trade will make the 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 Harmon, Director
Commercial and Trade Facilitation Division