CLA-2: RR:CR:TE: 967179 BtB
John L. Glueck, Esq.
Conair Corporation
1 Cummings Point Road
Stamford, CT 06904
RE: Revocation of NY J87028 and NY K81794 regarding the tariff classification of massaging slippers
Dear Mr. Glueck:
This is in response to your letter dated June 24, 2004, on behalf of Conair Corporation, requesting reconsideration of New York Ruling Letter (NY) J87028, dated August 21, 2003, and NY K81794, dated February 4, 2004, regarding the tariff classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of certain massaging slippers manufactured in China.
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 (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed revocation of NY J87028 and NY K81794 was published in the Customs Bulletin, Volume 38, Number 35, on August 25, 2004. CBP received two comments during the notice and comment period that closed on September 24, 2004, both of which supported the proposed action. One comment, from you, noted that two of the massaging slipper models at issue, model VSW1 and VSM1, were incorrectly referred to as model “WSW1” and “WSM1” in NY J87028. While this ruling addresses the classification of the same models, the models are referred to by their correct names, model VSW1 and VSM1.
FACTS:
NY J87028 covers Conair™ Body Benefits® Foot Vibes™ massaging slippers models VSW1 and VSM1. The VSW1 is designed for women and the VSM1 is designed for men. Both are only available in “one-size-fits-all.” The VSW1 is a closed-toe, open-heel slipper with a suede leather upper external surface area. It has a woven textile fleece-like collar, approximately 1-¾ inches wide, traversing the vamp. Additionally, it has a thick foam rubber/plastic midsole (the rear portion of which is accessible through a zippered closure) and a separately sewn-on suede leather outer sole. A vibrating massaging unit is embedded in the heel section of the VSW1’s midsole. When turned on, the unit causes the midsole to vibrate, giving the wearer a foot massage. The unit is turned on and off with a push-button switch located on the side of the slipper. The VSM1 is also a closed-toe, open-heel slipper with a suede leather upper external surface area. Unlike the VSW1, the VSM1 does not have a woven textile fleece-like collar traversing the vamp or on its midsole. Instead, the VSM1 has a textile top-line collar, approximately 3/8 of an inch wide, traversing the vamp. It has a textile faced foam rubber padded insole and a rubber/plastic outsole. Additionally, it has a thick foam rubber/plastic midsole (the rear portion of which is accessible through a zippered closure). Like the VSW1, a vibrating massaging unit is embedded in the heel section of the VSM1’s midsole. The unit is turned on and off with a push-button switch located on the side of the slipper.
NY K81794 covers Conair™ Body Benefits® Foot Vibes™ massaging slippers model VSW1G. This VSW1G is identical to the VSW1 except that the suede leather upper and the fleece-like band upper portion traversing the instep can be pulled apart, revealing a relatively flat pouch measuring approximately 4 ½ inches across by 4 inches deep. The WSW1G comes with two “gel packs” which are designed to be heated in a microwave and placed into the pouches in each slipper. Each pouch has a hook and loop fabric closure that helps to keep the packets in place, on top of the instep, when they are inserted in the slippers.
The VSW1, VSM1, and VSW1G are powered by batteries that are not included with the slippers. Each slipper uses two AAA batteries. All of the models are boxed and sold as massaging slippers.
In NY J87028, model VSW1 was classified in subheading 6403.59.90, HTSUSA, which provides for “Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of leather: Other footwear with outer soles of leather: Other: Other: For other persons.” Also in NY J87028, model VSM1 was classified in subheading 6403.99.60, HTSUSA, which provides for “Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of leather: Other: Other: Other: Other: For men, youths and boys.” In NY K81794, model VSW1G was also classified in subheading 6403.59.90, HTSUSA.
In this ruling, models VSW1, VSM1, and VSW1G will be collectively referred to as the “Conair™ massaging slippers.”
ISSUE:
Whether the Conair™ massaging slippers are classified under heading 9019, HTSUSA, as massage apparatus, or under heading 6403, HTSUSA, as footwear.
LAW AND ANALYSIS:
Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides, in part, that classification decisions are to be "determined according to the terms of the headings and any relative section or chapter notes." In the event that goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI may then be applied, in order. The Harmonized Commodity Description and Coding System Explanatory Notes (EN) constitute the official interpretation of the Harmonized System at the international level (for the 4 digit headings and the 6 digit subheadings) and facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI. While neither legally binding nor dispositive of classification issues, the EN provide commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the headings. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989).
Models VSW1 and VSM1 each consist of two individual components, a slipper and a massaging mechanism. Nevertheless, classification of the models may be determined pursuant to GRI 1 if the terms of either heading 6404, HTSUSA, or 9019, HTSUSA, are sufficiently broad to cover the complete article.
Heading 6403, HTSUSA, covers “Footwear with outer soles of rubber, plastics, leather or composition leather and uppers of leather.” It is clear that the terms of this heading cover only one of the models’ components, the slipper.
In pertinent part, heading 9019, HTSUSA, covers “Mechano-therapy appliances; massage apparatus ... parts and accessories thereof.” For guidance in interpreting the scope of this heading, we look to the EN to heading 9019, which in part pertinent to the term “massage apparatus,” provide the following guidance:
(II) MASSAGE APPARATUS
Apparatus for massage of parts of the body (abdomen, feet, legs, back, arms, hands, face, etc.) usually operate by friction, vibration, etc. They may be hand- or power-operated, or may be of an electro-mechanical type with a motor built in to the working unit (vibratory-massaging appliances). The latter type in particular may include interchangeable attachments (usually of rubber) to allow various methods of application (brushes, sponges, flat or toothed discs, etc.).
The terms of the heading and the guidance provided by the EN indicate that heading 9019, HTSUSA, is sufficiently broad to cover both of the components of the VSW1 and VSM1. As noted, a “massage apparatus” may include not only a vibratory-massaging appliance, but also the method by which the vibrating massage is applied to the intended body part. With models VSW1 and VSM1, the slipper functions as the component of the apparatus which holds the massaging component in place, allowing massage to be applied to the foot. In light of the above analysis, we find that the VSW1 and VSM1 are goods classifiable pursuant to GRI 1, under heading 9019. Both models are classified in subheading 9019.10.2030, HTSUSA. This determination is consistent with that of Headquarters Ruling Letter (HQ) 960032, dated December 6, 1999, in which we classified a textile travel slipper with a battery-operated massaging device under subheading 9019.10.2030, HTSUSA pursuant to GRI 1.
While we find that the terms of the heading and the guidance provided by the EN indicate that heading 9019, HTSUSA, is sufficiently broad to cover both of the components of the VSW1 and VSM1, we do not find that the heading is broad enough to cover all of the components of the model VSW1G. The VSW1G consists of three individual components, a slipper, a massaging mechanism, and a gel pack. We find that the scope of this heading is not broad enough to cover the gel pack. The gel pack, individually, is classifiable under heading 3824, HTSUSA, which provides for, among other things, chemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included.
As heading 9019, HTSUSA, is not sufficiently broad to cover the complete article and at least two of the components of the model VSW1G are classifiable in different headings, the complete good cannot be classified by reference to GRI 1. In pertinent part, GRI 2(b) states: “[t]he classification of goods consisting of more than one material or substance shall be according to the principles of rule 3.” GRI 3(a) directs that the headings are regarded as equally specific when they each refer to part only of the materials contained in mixed or composite goods. We next look to GRI 3(b), which states in part that: “composite goods ... 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 applicability of GRI 3(b) is dependent upon whether the complete article is deemed to comprise a composite good. In pertinent part, EN IX to GRI 3(b) indicates that:
For purposes of this Rule, composite goods made up of different components shall be taken to mean not only those in which the components are attached to each other to form a practically inseparable whole but also those with separable components, provided these components are adapted one to the other and are mutually complementary and that together they form a whole which would not normally be offered for sale in separate parts.
In this instance, although the gel pack is separable from the massaging mechanism and the slipper, the components are adapted to each other and are mutually complementary. The massaging mechanism is embedded in the slipper’s midsole and cannot be removed. The slipper has a compartment expressly designed to hold the gel pack. The massaging unit, the slipper and the gel pack are specifically designed to be used together so that the user receives a heated foot massage. It is not likely that the massaging unit and the slipper, with its gel pack compartment, would be sold without the gel pack. If the massaging units and slippers did not include the gel packs, the user would need to search for and purchase gel packs that are not only capable of being heated, but also sized to fit into the slippers. In light of the above, we find that the massaging unit, the slipper, and the gel pack constitute a composite good.
In order to determine the essential character of the composite article, we first look to EN VIII to GRI 3(b), which provides the following guidance:
The 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 a constituent material in relation to the use of the goods.
We find that the primary purpose of the instant merchandise is to provide the user with a heated massage. The massaging mechanism plays a significant role in accomplishing this purpose. The slipper functions as the component which holds the massaging component in place, allowing massage to be applied to the foot. Although the gel pack provides an important feature (i.e., heat) that may enhance the user’s experience, the massage unit remains the component responsible for producing the article’s main function. Therefore, we find that the massaging mechanism imparts the essential character to the composite article and that the article is classifiable in accordance with the massaging mechanism.
HOLDING:
The Conair™ massaging slippers identified as models VSW1, VSM1, and VSW1G, are classified in subheading 9019.10.2030, HTSUSA, the provision for “Mechano-therapy appliances and massage apparatus; parts and accessories thereof, Massage apparatus: Electrically operated: Battery powered: Other.” The general column one duty rate is free.
NY J87028 and NY K81794, dated August 21, 2003, and February 4, 2004, respectively, are hereby revoked. In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial Rulings Division