CLA 2-94:OT:RR:NC:N4:463
Mr. David J. Scott
Tortle Products, LLC
5460 S Quebec St
Greenwood Village, CO 80111
RE: Classification of a Womba Pod made in China
Dear Mr. Scott:
This is in reply to your letter dated April 26, 2021, requesting a tariff classification ruling on a Womba Pod. Illustrative literature, product descriptions and a sample were provided.
Per the information provided, the Womba Pod (SKU 67102) is a holding and positioning device for stabilizing a baby during transport between neonatal intensive care units.
The Womba Pod is made of an aerated polyurethane foam pad with a small depression for the head on a corrugated plastic support, zipped into a woven (95% cotton/5% spandex) fabric cover and includes fastening straps, anchor straps and webbing loops, all of which are affixed with Velcro fasteners. The Womba Pod measures 48.25 cm (L) x 20.35 cm (W) x 5 cm (D) and is made in China. See the following image:
Classification under the Harmonized Tariff Schedule of the United States (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 (together known as legal 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 are then applied in order.
The competing HTSUS headings are 9018 (Instruments and appliances used in medical, surgical, dental or veterinary sciences…parts and accessories thereof) and heading 9404 (Mattress supports; articles of bedding and similar furnishings (for example, mattresses…cushions…and pillows…).
With respect to heading 9018, we note that the Womba Pod is not used in a professional practice to make a diagnosis, prevent or treat an illness, or perform surgery. Therefore, for classification purposes, they would not be considered medical instruments of heading 9018. Approval as a “medical device” by the FDA is not dispositive with respect to classification under the HTSUS. As noted in HQ 962181, dated January 13, 1999, “[a]rticles are classified by the FDA to protect public safety, not as guidance to Customs classification.” CBP cited Amersham Corp v. United States, 5 C.I.T. 49, 56, 564 F. Supp. 813, 817 (1983), and noted that “[i]t is well established that statutes, regulations and administrative interpretations relating to ‘other than tariff purposes’ are not determinative of [CBP] classification disputes.”
Having determined that the Womba Pod cannot be classified in HTSUS heading 9018, it will be classified in heading 9404. Within HTSUS heading 9404, the competing subheadings are 9404.21 (mattress of cellular rubber or plastics) and subheading 9404.90 (pillows, cushions and similar furnishings).
When terms are not defined in the HTSUS or the Explanatory Notes (ENs) to the HTSUS, they are construed in accordance with their common and commercial meaning – Nippon Kogasku (USA), Inc. v. United States, 69 CCPA 89, 673 F.2d 380 (1982). Common and commercial meaning may be determined by consulting dictionaries, lexicons, scientific authorities and other reliable sources. C.J. Tower & Sons v. United States, 69 CCPA 128, 673 F.2d 1268 (1982).
Dictionary.com defines “mattress” as “a large pad for supporting the reclining body, used as or on a bed, consisting of a quilted or similarly fastened case, usually of heavy cloth, that contains hair, straw, cotton, foam rubber, etc., or a framework of metal springs.” Merriam Webster defines “cushion” as “a soft pillow or pad usually used for sitting, reclining, or kneeling.” Meriam Webster [also] defines “pillow” as “a support for the head of a reclining person especially one consisting of a cloth bag filled with feathers, down, sponge rubber, or plastic fiber.”
Although the Womba Pod can be considered a type of cushion or pillow, it most accurately meets the definition of a mattress. It supports the entirety of a reclining baby and not merely the head or another portion of a baby’s body and it is large in relation to a baby, extending well beyond the head and body on all sides. Additionally, whereas pillows and cushions usually have a simple construction with uniform fill, mattresses are usually characterized by their more complex construction and fill. This is the case of the Womba Pod, which is made of an aerated polyurethane foam pad with a small depression for the head on a corrugated plastic support, zipped into a woven fabric cover. Also included in the Womba Pod are fastening straps, anchor straps and webbing loops, all of which are affixed with Velcro.
The applicable subheading for the Womba Pod (SKU 67102) will be subheading 9404.21.0095, 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." The rate of duty will be 3 percent 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.
Pursuant to U.S. Note 20 to Subchapter III, Chapter 99, HTSUS, products of China classified under subheading 9404.21.0095, HTSUS, unless specifically excluded, are subject to an additional 25 percent ad valorem rate of duty. At the time of importation, you must report the Chapter 99 subheading, i.e., 9903.88.03, in addition to subheading 9404.21.0095, HTSUS, listed above.
The HTSUS is subject to periodic amendment, so you should exercise reasonable care in monitoring the status of goods covered by the Note cited above and the applicable Chapter 99 subheading. For background information regarding the trade remedy initiated pursuant to Section 301 of the Trade Act of 1974, including information on exclusions and their effective dates, you may refer to the relevant parts of the USTR and CBP websites, which are available at https://ustr.gov/issue-areas/enforcement/section-301-investigations/tariff-actions and https://www.cbp.gov/trade/remedies/301-certain-products-china respectively.
The merchandise in question may be subject to antidumping duties and countervailing duties (AD/CVD). Written decisions regarding the scope of AD/CVD orders are issued by the Enforcement and Compliance office in the International Trade Administration of the Department of Commerce and are separate from tariff classification and origin rulings issued by Customs and Border Protection (CBP). You can contact them at https://trade.gov/enforcement/ (click on “Contact Us”). For your information, you can view a list of current AD/CVD cases at the United States International Trade Commission website at https://www.usitc.gov/trade_remedy/documents/orders.xls, and you can search AD/CVD deposit and liquidation messages using CBP’s AD/CVD Search tool at https://aceservices.cbp.dhs.gov/adcvdweb.
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 Seth Mazze at [email protected].
Sincerely,
Steven A. Mack
Director
National Commodity Specialist Division