Main Idea: HTSUS Chapter 98, Subchapter 17, U.S. Note 4(b) exclusions are determined based on weighing all criteria. Although a product may meet the definition outlined in U.S. Note 4(a), they may fit the criteria outlined in U.S. Note 4(b) and therefore be excluded.

In ruling N330488 (Feb. 9, 2023), Customs and Border Protection (CBP) determined the appropriate HTS classification and subheading applicability of a rotation cushion made in Spain.  The PEPE Patient Rotation Cushion, item number P40013, is intended to help facilitate grooming tasks and prevent bedsores.  This product is utilized by caregivers of people with severely reduced mobility, including elderly and disabled people.  This cushion is in a half-moon shape with cutouts to fit the patient’s legs and two handles for grasping on either side.  This product is made up of high-density HR foam covered in a hypoallergenic, waterproof, and non-slip fabric cover, is approximately 17.7” (W) x 15.7” (H) x 5.1” (D), and can be used with a patient who weighs up to 242 lbs.

Customs classifications under the Harmonized Tariff Schedule of the United States (HTSUS) are made pursuant to the General Rules of Interpretation (GRIs).  GRI 1 stipulates that the classification of goods is to be determined per the terms of the headings of the HTSUS and relevant section or chapter notes.  If the goods are unable to be classified solely based on GRI 1 and if the headings and legal notes do not otherwise require, the remaining GRIs 2 and 6 may be applied, respectively.

CBP determined that, per GRI 1, the applicable classification for the PEPE Patient Rotation Cushion is subheading 9404.90.2090, 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, Other.”

The manufacturer of this PEPE Patient Rotation Cushion inquired whether a secondary subheading providing duty-free treatment, 9817.00.96, is available.  However, CBP explained that subheading 9817.00.96 requires that the subject articles meet the terms of the HTSUS Chapter 98, Subchapter 17, U.S. Note 4(a) and not be included in exclusions listed in U.S. Note 4(b).  Specifically, subject articles that meet the terms of Note 4(a) must be for “blind or other physically or mentally handicapped persons,” which includes “any person suffering from a permanent or chronic physical or mental impairment which substantially limits one or more major life activities.”

HTSUS Chapter 98, Subchapter 17, U.S. Note 4(a) and 4(b) states:

(a) For purposes of subheadings 9817.00.92, 9817.00.94, and 9817.00.96, the term “blind or other physically or mentally handicapped persons” includes any person suffering from a permanent or chronic physical or mental impairment which substantially limits one or more major life activities, such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, or working.

(b) Subheadings 9817.00.92, 9817.00.94, and 9817.00.96 do not cover –

            (i) articles for acute or transient disability;

            (ii) spectacles, dentures, and cosmetic articles for individuals not substantially disabled;

            (iii) therapeutic and diagnostic articles; or

            (iv) medicine or drugs.

According to CBP, it considers the following information in determining whether or not an article is specifically designed or adapted for the handicapped: (1) The likelihood of general public use; (2) Whether or not articles are imported by manufacturers and distributors proven to be involved in this type of articles for the handicapped; (3) Whether or not the articles are sold in stores specifically designed to serve handicapped people; and (4) Whether or not the condition of the articles upon the time of importation indicates that the subject articles are designed for handicapped people.  Each of the aforementioned factors is weighed on a situational basis to determine whether or not an article is “specially designed or adapted” per the meaning of the statute.

CBP therefore determined that the subject PEPE Patient Rotation Cushion meets the terms of HTSUS Chapter 98, Subchapter 17, U.S. Note 4(a) and is not included among exceptions listed in U.S. Note 4(b).  In so finding, CBP specifically stated that the product was not for an acute or transient disability.  The rate of duty for the product was consequently found to be free pursuant to subheading 9817.00.96.  

Print:
Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Weronika Bukowski Weronika Bukowski
Read more about Weronika Bukowski
Photo of Simeon Yerokun Simeon Yerokun

imeon Yerokun is a counsel in Crowell & Moring’s International Trade group and based in the firm’s Washington, D.C. office. He advises clients on all areas of import regulatory compliance, trade remedies, and international trade litigation.

Simeon has extensive experience counseling companies in

…

imeon Yerokun is a counsel in Crowell & Moring’s International Trade group and based in the firm’s Washington, D.C. office. He advises clients on all areas of import regulatory compliance, trade remedies, and international trade litigation.

Simeon has extensive experience counseling companies in the areas of business and human rights law, including compliance with global anti-forced labor and human rights requirements. He regularly represents companies before U.S. government agencies on forced labor-related matters, including securing the release of goods detained and seized by U.S. Customs and Border Protection. He also offers deep experience assisting companies in mapping their supply chains, including linking imported products back to their raw materials using enterprise software and other inventory management audit tools. Simeon is highly accomplished in forced labor supply chain mapping and risk assessments, as well as verifying due diligence efforts with on-the-ground visits to client facilities, incorporating third-party intelligence and audit resources.

Simeon’s experience also covers a broad spectrum of trade and customs issues, including those related to import regulatory compliance matters such as valuation, classification, duty drawback, marking and labeling, entry procedures, and penalties; free trade agreements; antidumping and countervailing duty issues; trade litigation; intellectual property issues such as trademark and copyright infringement; the enforcement of exclusion orders issued by the International Trade Commission (ITC); steel and aluminum tariffs under the Section 232 National Security Investigation; and the additional tariffs on products from China under Section 301 of the Trade Act of 1974.

Additionally, Simeon handles antidumping (AD) and countervailing duty (CVD) investigations before the U.S. Department of Commerce’s International Trade Administration (ITA) and the U.S. International Trade Commission (ITC) under the Tariff Act of 1930, and litigation involving the U.S. Court of International Trade (CIT).

Prior to joining Crowell, Simeon was a trade and finance attorney in the Office of Chief Counsel—U.S. Customs and Border Protection (CBP), and before that, he served as counsel to Commissioner Irving A. Williamson at the U.S. International Trade Commission.

Simeon is a proud graduate of Howard University School of Law, where he served as technical editor of the school’s Human Rights and Globalization Law Review.

Read more about Simeon Yerokun
Show more Show less
Photo of Emily Devereaux Emily Devereaux
Read more about Emily Devereaux