CLA-2-39:OT:RR:NC:N4:421
Mr. Aleksey Shlyakta
Breathe Slim, Inc.
4256 N. Arlington Heights Road, Suite 230
Arlington Heights, IL 60004
RE: The tariff classification of BreathSlim from Russia
Dear Mr. Shlyakta:
In your letter dated April 10, 2010, you requested a tariff classification ruling.
The sample submitted with your request is identified as the BreathSlim weight loss training device. You market the product as a device for exercising the respiratory system with the aim of improving lung ventilation, gas exchange and metabolism. This is accomplished by creating resistance to breathing during exhalation. The device consists of a beaker, a perforated inner chamber and a lid with a breathing tube and mouthpiece, all made of plastics. The beaker is designed to be filled with a measured amount of liquid. The exercise consists essentially of breathing into the mouthpiece and through the perforated chamber into the water-filled beaker in a controlled manner, forming bubbles in the water. The user controls his breathing rate by monitoring and controlling the bubbles blown into the water. The BreathSlim is not intended for the diagnosis or treatment of ailments. The device is imported in a retail packaging box that includes an instructional optical disc, a printed instruction booklet and a small flexible magnet printed with the words “BreathSlim weight loss device.”
You stated in a telephone conversation that the BreathSlim is currently manufactured in Russia, but you indicate in your letter that in the future the product may be manufactured in the United States. You also indicate that the product may be imported in the form of separate components for assembly in the United States.
The applicable subheading for the BreathSlim device imported as a complete assembly, including the beaker, perforated chamber, lid, breathing tube, mouthpiece, instructional optical disc and printed instruction booklet, will be 3926.90.9980, Harmonized Tariff Schedule of the United States (HTSUS), which provides for other articles of plastics, other. The rate of duty will be 5.3 percent ad valorem. When imported as a complete assembly, the small advertising type magnet is considered to be de minimis. The magnet is disregarded for classification purposes and its value is included in the value of the BreathSlim assembly.
The applicable subheading for separately imported beakers, inner chambers and mouthpieces will be 3926.90.9980, HTSUS, which provides for other articles of plastics, other. The rate of duty will be 5.3 percent ad valorem.
The applicable subheading for separately imported breathing tubes will be 3917.32.00, HTSUS, which provides for tubes, pipes and hoses and fittings therefor…other tubes, pipes and hoses: other, not reinforced or otherwise combined with other materials, without fittings. The rate of duty will be 3.1 percent ad valorem.
The applicable subheading for separately imported lids will be 3923.50.0000, HTSUS, which provides for stoppers, lids, caps and other closures, of plastics. The rate of duty will be 3.1 percent ad valorem.
The applicable subheading for separately imported printed instruction booklets will be 4901.99.0092, HTSUS, which provides for printed books, brochures, leaflets and similar printed matter, whether or not in single sheets: other: other: other: other: containing 5 or more pages each, but not more than 48 pages each (excluding covers). The rate of duty will be free.
The applicable subheading for separately imported recorded instructional optical discs will be 8523.40.5000, HTSUS, which provides for discs, tapes, solid-state, non-volatile storage devices, "smart cards" and other media for the recording of sound or of other phenomena, whether or not recorded, including matrices and masters for the production of discs, but excluding products of Chapter 37, optical media, other, other. The rate of duty will be 2.7 percent ad valorem.
The applicable subheading for separately imported magnets will be 8505.19.1000, HTSUS, which provides for permanent magnets and articles intended to become permanent magnets after magnetization: other: flexible magnets. The rate of duty will be 4.9 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 http://www.usitc.gov/tata/hts/.
The BreathSlim beaker and the packaging box in which the BreathSlim device is marketed are both marked with the company’s Arlington Heights address and no other indication as to the country of origin. Although your letter states that you intend to manufacture the device in the United States, you indicated in a telephone conversation with this office that the country of origin of the product is Russia. The marking statute, section 304, Tariff Act of 1930, as amended (19 U.S.C. 1304), provides that, unless excepted, every article of foreign origin (or its container) imported into the U.S. shall be marked in a conspicuous place as legibly, indelibly and permanently as the nature of the article (or its container) will permit, in such a manner as to indicate to the ultimate purchaser in the U.S. the English name of the country of origin of the article.
Section 134.46, Customs Regulations (19 CFR 134.46), deals with cases in which the words “United States,” or “American,” the letters “U.S.A.,” any variation of such words or letters, or the name of any city or locality in the United States, or the name of any foreign country or locality other than the country or locality in which the article was manufactured or produced, appears on an imported article or its container, and those words, letters or names may mislead or deceive the ultimate purchaser as to the actual country of origin. In such a case, there shall appear, legibly and permanently, in close proximity to such words, letters, or name, and in at least a comparable size, the name of the country of origin preceded by “Made in,” “Product of,” or other words of similar meaning. In order to satisfy the close proximity requirement, the country of origin marking must generally appear on the same side(s) or surface(s) in which the name or locality other than the actual country of origin appears.
The current marking is only acceptable when the components are made in the United States. At the present time, with components manufactured in Russia, the product must be legibly and conspicuously marked to show Russia as the country of origin. If any of the imported components are printed with the domestic address, the words “Made in Russia” must appear in close proximity and in equally conspicuous printing as the domestic address in order to satisfy the marking requirements of 19 U.S.C. 1304 and 19 CFR Part 134.
Since the advertising literature and documentation submitted with the ruling request indicate that individuals might experience certain physical and weight loss benefits through the use of the device, the product may be subject to additional requirements by the U.S. Food and Drug Administration (FDA). Questions regarding any applicable regulations may be addressed to the Food and Drug Administration, Guidelines and Regulations Branch, HFF 314, 200 C Street S.W., Washington, D.C. 20204.
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 Joan Mazzola at (646) 733-3023.
Sincerely,
Robert B. Swierupski
Director
National Commodity Specialist Division