August 25, 2004 CBP Bulletin Notices on Certain Massaging Slippers and Orthodontic Cervical Neck Pads
In the August 25, 2004 issue of the U.S. Customs and Border Protection Bulletin (CBP Bulletin) (Vol. 38, No. 35), CBP issued notices: (a) proposing to revoke two classification rulings on certain massaging slippers, and (b) proposing to revoke a classification ruling on orthodontic cervical neck pads. CBP states that it is also proposing to revoke any treatment it has previously accorded to substantially identical transactions that are contrary to its position in these notices.
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CBP states that any party who has received a contrary ruling or decision on the merchandise that is subject to the proposed rulings, or any party involved with a substantially identical transaction, should advise CBP by September 24, 2004, the date that written comments on the proposed rulings are due. Furthermore, CBP states that an importer's failure to advise CBP of such rulings, decisions, or substantially identical transactions may raise issues of reasonable care on the part of the importer or its agent for importations subsequent to the effective date of the final decision in these notices.
CBP also states that these notices cover any rulings on the subject merchandise that may exist but have not been specifically identified.
Proposed Revocation of Classification Rulings
Certain Massaging Slippers. At issue are three models of battery-powered massaging slippers with suede leather upper external surface areas: models VSW1 (designed for women) and VSM1 (designed for men) each consist of two individual components: a slipper and a massaging mechanism; and model VSW1G consists of three individual components: a slipper, a massaging mechanism, and a gel pack.
CBP is proposing to issue HQ 967179 in order to revoke NY J87028 and NY K81794 and reclassify the three models of slippers under HTS 9019.10.2030 as "other battery powered massage apparatus" rather than classifying the VSW1 and VSW1G models under HTS 6403.59.90 which provides for "other footwear with outer soles of leather for other persons" and the VSM1 model under HTS 6403.99.60 which provides for "other footwear with outer soles of rubber, plastics, leather or composition leather and uppers of leather for men, youths and boys."
CBP states that the terms of HTS 9019 and the guidance provided by the Explanatory Note (EN) to HTS 9019 indicate that HTS 9019 is sufficiently broad to cover both of the components of models VSW1 and VSM1. Therefore, CBP states that these models should be classified pursuant to General Rule of Interpretation (GRI) 1 under HTS 9019.10.2030.
Regarding model VSW1G, CBP states that although the gel pack is separable from the massaging mechanism and slipper, the components are adapted to each other and therefore constitute a composite good. Pursuant to EN VIII to GRI 3(b), CBP states that the massaging mechanism imparts the essential character to the composite good (model VSW1G) and the model should be classified in accordance with the massaging mechanism. Consequently, CBP states that model VSW1G should also be classified under HTS 9019.10.2030.
proposed: 9019.10.2030, duty-free; current: 6403.59.90, 10%; 6403.99.60, 8.5%.
Orthodontic Cervical Neck Pads. At issue are cervical neck pads, made from textile and foam padding with a nylon band sewn into one side of the pad, that are used in orthodontic headgear systems and are designed to exert the appropriate amount of tension to prevent malocclusion.
CBP is proposing to issue HQ 967116 in order to revoke HQ 965623 and reclassify the pads under HTS 9021.10.0090 as "other orthopedic or fracture appliances, and parts and accessories thereof" rather than under HTS 6307.90.9889 which provides for "other made up articles, including dress patterns."
CBP states that the EN to HTS 6307 indicates that the heading covers made up articles of any textile material which are not included more specifically in other headings of Section XI or elsewhere in the Nomenclature.
According to a previous court decision, CBP states that a device may be considered a "part" of an article even though the device is not necessary to the operation of the article, provided that once the device is installed the article cannot function properly without it.
CBP states that the pad is a part of the cervical headgear, and that without the pad, the headgear would not effectively correct malocclusions. Therefore, CBP states that the pad is a part of the appliances of HTS 9021, and should be classified in HTS 9021.10.0090.
proposed: 9021.10.0090, duty-free; current: 6307.90.9889, 7%.
August 25, 2004 CBP Bulletin (Vol. 38, No. 35) available at http://www.cbp.gov/xp/cgov/toolbox/legal/bulletins_decisions/bulletins_2004/vol38_08252004_no35/