CLA–2 OT:RR:CTF:TCM H112635 LWF
Ms. Deborah Pilling
Slendertone Distribution, Inc.
50 Harrison Street, Suite 114
Hoboken, NJ 07030
RE: Revocation of Headquarters Ruling Letter (“HQ”) 966716, HQ 966973, New York Ruling Letter (“NY”) J89141, NY D88729; and NY A84349; Classification of Electrical Muscle Stimulation Machines
Dear Ms. Pilling:
This is in reference to the request for reconsideration of Headquarters Ruling Letter (“HQ”) 966716, dated May 20, 2004, regarding the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of an electrical muscle stimulation machine identified as the “Slendertone Flex.” In that ruling, Customs and Border Protection (CBP) classified the Slendertone Flex under subheading 8543.89.96, HTSUS (2004), which provides for “Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter; parts thereof: Other machines and apparatus: Other: Other: Other: Other.” We have reviewed HQ 966716 and find it to be incorrect. Accordingly, for the reasons set forth below, we are revoking HQ 966716 and four other rulings containing substantially similar merchandise.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. §1625(c)(1)), as amended by section 623 of Title VI, notice proposing to revoke Ruling Letter HQ 966973, dated May 10, 2004; HQ 966716, dated May 10, 2004; New York Ruling Letter (“NY”) J89141, dated October 15, 2003; NY D88729, dated March 24, 1999; and NY A84349, dated July 2, 1996, was published on July 3, 2013, in Volume 47, Number 28, of the Customs Bulletin and Decisions. No comments were received in response to the Notice.
FACTS:
In HQ 966716, CBP described the Slendertone Flex as follows:
The Slendertone Flex is a battery-operated muscle stimulation apparatus which is designed to deliver electronic stimulation signals that are supposed to strengthen and tone the abdominal muscles without the wearer having to be physically active. It is composed of five basic parts: (1) the main “flex” electrical unit which generates electronic stimulation signals and houses the batteries; (2) the belt, which is made of 100% nylon binding; (3) three adhesive pads which adhere to the belt and conduct the signals from the electrical unit to the abdominal muscles; (4) a nylon travel pouch; and (5) three AAA batteries. The Slendertone Flex is generally representative of a class of products designed for use by a healthy person where electrical muscle stimulation is applied through skin contact electrodes for the purposes of improving tone, strength, and firmness of a focused muscles group. This class of electrically powered muscle stimulators is said to stimulate the muscles and to produce beneficial therapeutic effects by assisting in the contraction and relaxation of the focused muscles and the elimination of body fat.
Additionally, U.S. Patent No. 6,760,629 (filed Jul. 10, 2001) describes the method by which the Slendertone Flex stimulates abdominal muscles via the application of pulsed electrical signals to nerve trunks located among the lower thoracic and the first and second lumbar nerves.
ISSUE:
Whether the Slendertone Flex is properly classified under subheading 8543.70.85, HTSUS, as an electrical apparatus for electrical nerve stimulation, or in subheading 8543.70.96, as an electrical apparatus for other than electrical nerve stimulation?
LAW AND ANALYSIS:
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes.
GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in their appropriate order. GRI 6 requires that the classification of goods in the subheading of headings shall be determined according to the terms of those subheadings, any related subheading notes and, mutatis mutandis, to GRIs 1 through 5. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the heading and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order.
GRI 3 provides, in relevant part:
When by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:
…
(b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.
* * * * *
The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System at the international level. While not legally binding, the ENs provide a commentary on the scope of each heading of the HTS and are thus useful in ascertaining the proper classification of merchandise. It is CBP’s practice to follow, whenever possible the terms of the ENs when interpreting the HTSUS. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The 2012 HTSUS subheadings under consideration are as follows:
8543 Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter; parts thereof:
8543.70 Other machines and apparatus:
Other:
Other:
8543.70.85 For electrical nerve stimulation...
8543.70.96 Other…
* * * * *
Inasmuch as the Slendertone Flex is an electrical apparatus fully described by heading 8543, HTSUS, this dispute concerns the proper tariff classification of the merchandise in the subheadings of the same heading. Consequently, GRI 6 applies.
As an initial matter, we note that the Slendertone Flex is put up for retail sale as a set consisting of an electrical unit, nylon belt, adhesive pads, nylon travel pouch, and batteries. GRI 3(b) states that “[g]oods put up in sets for retail sale shall be classified as if they consisted of the material or component which gives them their essential character.” See EN (X) to GRI 3(b).
The “essential character” of an article is “that which is indispensable to the structure, core or condition of the article, i.e., what it is.” Structural Industries v. United States, 360 F. Supp. 2d 1330, 1336 (Ct. Int’l Trade 2005). EN VIII to GRI 3(b) explains that "[t]he factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of the constituent material in relation to the use of the goods." Recent court decisions on the essential character for GRI 3(b) purposes have looked primarily to the role of the constituent material in relation to the use of the goods. See Estee Lauder, Inc. v. United States, No. 07-00217, 2012 Ct. Int’l Trade LEXIS 23, *17-18; Structural Industries, 360 F. Supp. 2d 1330; Conair Corp. v. United States, 29 C.I.T. 888 (2005); Home Depot USA, Inc. v. United States, 427 F. Supp. 2d 1278 (Ct. Int’l Trade 2006), aff’d 491 F.3d 1334 (Fed. Cir. 2007).
The electrical unit, nylon belt, adhesive pads, nylon travel pouch, and batteries are classifiable in different headings, are “put up together” to enable a user to stimulate the abdominal muscles, and are offered for sale directly to consumers without repacking. The user of the Slendertone Flex attaches the belt around his waist area and electrical impulses are transmitted through the skin to nerve trunks located among the lower thoracic and the first and second lumbar nerves to stimulate the abdominal muscles to contract. At all times during operation of the Slendertone Flex, the battery-powered electrical unit supplies electricity to the adhesive pads and is indispensible to the function of stimulating the abdominal muscles. Consequently, we have determined that the electrical unit imparts the Slendertone Flex with its essential character.
The electrical unit is a battery-powered electrical apparatus that generates a low-voltage electric current which passes through the skin, via electrodes, to the nerves of the abdominal muscles, causing them to contract. See U.S. Patent No. 6,760,629 (filed Jul. 10, 2001). The merchandise has an individual function (i.e., its function can be performed distinctly from and independently of any other device) of stimulating the abdominal muscles and it is not described elsewhere in chapter 85 of the HTSUS. See EN 85.43. Accordingly, we affirm that the electrical unit meets the terms of heading 8543, HTSUS.
Specifically, because the electrical unit functions by electrically stimulating the motor nerves of the abdominal muscles, the electrical unit is most accurately provided for eo nomine by the terms of subheading 8543.70.85, HTSUS, which state “Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter; parts thereof: Other achiness and apparatus: Other: Other: For electrical nerve stimulation.” See NY N173357, dated July 18, 2011; NY N044456, dated December 5, 2008; NY N016482, dated September 13, 2007; NY M87761, dated November 20, 2006.
HOLDING:
By application of GRI 3(b) and GRI 6, the Slendertone Flex is classified under heading 8543, HTSUS, specifically in subheading 8543.70.85, HTSUS, which provides for “Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter; parts thereof: Other achiness and apparatus: Other: Other: For electrical nerve stimulation.” The column one, general rate of duty is Free.
Duty rates are provided for convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at http://www.ustic.gov.
In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after publication in the Customs Bulletin and Decisions.
EFFECT ON OTHER RULINGS:
In accordance with the above analysis, HQ 966716, dated May 10, 2004; HQ 966973, dated May 10, 2004; NY J89141, dated October 15, 2003; NY D88729, dated March 24, 1999; and NY A84349, dated July 2, 1996, are hereby REVOKED.
This ruling will become effective 60 days after publication in the Customs Bulletin and Decisions.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division