CLA-2 CO:R:C:F 089891 EAB
Alan R. Klestadt, Esquire
Grunfeld, Desiderio, Lebowitz & Silverman
12 East 49th Street
New York, New York 10017
Re: Classification of electronic monitors used on exercise
equipment and machines; speedometers; treadmills; parts;
accessories; 9029; 9506; Additional U.S. Rule of
Interpretation 1(c); Oxford International; Vilem B. Haan;
J.C. Penney; 081571; 085198; 087550; 953141
Dear Mr. Klestadt:
This is in reply to your letter dated June 7, 1991, in which
you request a binding ruling on the classification under the
Harmonized Tariff Schedule of the United States Annotated
(HTSUSA) of electronic monitors used on stationary exercise
equipment, i.e., treadmills. The manufacturer's specification
sheets and operation instructions together with samples have been
provided for our examination.
FACTS:
The merchandise will be made in either Taiwan or Hong Kong
and consists of three units referred to in the manufacturer's
specification sheets and operation instructions as treadmill
electronic monitoring devices. The model numbers are ECS-12,
ECT-50 and ECT-61. All three have the following monitor and
display functions: speed, time, distance, caloric expenditure and
a scan mode. Models ECT-50 and ECT-61 have a pulse monitoring
and display function that operates through the use of an ear clip
that is hard-wired to the monitor.
Although you collectively refer to the merchandise as
"speedometers", you inform us that "styles ECT-50 and ECT-12 are
used solely in connection with Weslo's electronic treadmills and
are not designed for use on bicycles." Also, "[M]odel ECT-61 is
designed to be incorporated into a larger electronic treadmill
console after importation." In summary, you state: "The
merchandise * * * consists of three different speedometers which
are designed for use exclusively with the importer's exercise
machines. Depending on the unit, the speedometer may be matched
with an electronic treadmill, exercycle, rowing machine or
similar stationary exercise apparatus." For purposes of this
ruling, therefore, we consider the goods to be either principally
used with stationary exercise equipment or used solely with the
manufacturer's treadmills.
ISSUE:
Whether electronic monitors used with stationary exercise
equipment are classified under heading 9029, as speedometers and
tachometers, or under heading 9506, as parts and accessories of
exercise equipment.
LAW AND ANALYSIS:
Merchandise imported into the U.S. is classified under the
HTSUSA. The tariff classification of merchandise under the
HTSUSA is governed by the principles set forth in the General
Rules of Interpretation (GRIs) and, in the absence of special
language or context which otherwise requires, by the Additional
U.S. Rules of Interpretation.
You are of the opinion that the treadmill electronic
monitors are classifiable under subheading 9029.20.4080, HTSUSA,
a provision for speedometers other than those of heading 9015,
speedometers, other speedometers, other, to be entered free of
duty. It is your position that the foregoing is an eo nomine
provision; that Explanatory Note 90.29(B) "contemplates" that
multifunction speed indicators are classifiable under heading
9029; and, that, by virtue of said Explanatory Note, the
treadmill electronic monitors should "be classified under the eo
nomine [provision] for speedometers and tachometers in
[S]ubheading 9029.20.4080, HTSUS."
We disagree.
The treadmill electronic monitors are not simply multiple
function speedometers fitting the description of the goods of
heading 9029.
[W]here general words follow terms designating specific
or particular things, persons, or subjects, the general
words are to be construed as including only those
things, persons or subjects which are of the same kind,
class or species as those specifically enumerated.
Oxford International Corporation v. U.S., 75 Cust.Ct.
58, 68, C.D. 4608 (1975)
Heading 9029 is susceptible to the doctrine of ejusdem
generis for "revolution counters, production counters,
taximeters, odometers, pedometers and the like," emphasis
supplied, but not for "speedometers and tachometers, other than
those of heading 9015; stroboscopes; parts and accessories
thereof [,]" a scheme continued in the corresponding subheadings:
9029.10 revolution counters, production
counters, taximeters, odometers,
pedometers and the like: [emphasis
supplied]
9029.20 speedometers and tachometers;
stroboscopes:
The Explanatory Notes to heading 9029 do not suggest
otherwise. We note, as you have, that the heading is intended to
include articles that include a combination of features related
to the tachometer or speedometer function. Specifically, the
heading includes "Apparatus indicating a speed of revolution or a
linear speed in relation to a time factor * * *, [See Explanatory
Note 90.29(B) at 1521] [and] which simultaneously record speed,
mileage, time in motion and at a standstill, etc. [id. at 1523]."
Speed is not merely "related" to time, it is mathematically
defined as a function of both time and distance. We believe that
"in relation to" means proximately related, not attenuated, and
that pulse and calories are not proximately related to
speedometric functions. One can burn more calories in a lesser
period of time through greater exertion, e.g., by running instead
of walking over the same distance; alternatively, one can burn
more calories in a greater period of time at the same work level,
e.g., by walking a greater distance at a constant speed.
Similarly, pulse is more related to work than to time, time being
merely an accepted convenient reference. One has a higher pulse
after running for 20 minutes than after walking for 20 minutes.
We do not believe that pulse rate and calories burned during the
period of exercise are the types of related functions intended to
be covered. With respect to tachometers and speedometers, "in
relation to" is not language that merits application of the
doctrine of ejusdem generis. We find the treadmill electronic
monitors not to be "speedometers" of heading 9029.
To arrive at the correct classification, we turn first to
the legal notes of the Schedule, since GRI 1 requires that
classification be determined according to the terms of the
headings of the tariff schedule and any relative section or
chapter notes. As we are concerned with Chapters 90 and 95 here,
we look first at the sections for section notes. In doing so, it
is apparent that neither chapter is in a section having legal
notes. Therefore, we move to chapter notes.
Chapter 95, Note 3, states: "Subject to note 1 above [re
merchandise excluded from classification under any of the
headings of the chapter], parts and accessories which are
suitable for use solely or principally with articles of this
chapter are to be classified with those articles."
Heading 9506, HTSUSA, describes "Articles and equipment for
gymnastics, athletics, other sports (including table-tennis) or
outdoor games, not specified or included elsewhere in this
chapter; swimming pools and wading pools; parts and accessories
thereof."
We believe that the explicit wording of the note 3 to
chapter 95 covering heading 9506, HTSUSA, establishes clearly
that parts and accessories suitable for use solely or principally
with articles of chapter 95 must be classified with those
articles.
The foregoing principle finds recent favor in the conclusive
language of HR 953141 (February 8, 1993), concerning a wiring
harness assembly found to be a part of a wheeled toy. Therein,
Customs stated:
* * * Additional U.S. Rules of Interpretation 1(c), HTSUS,
does not have any effect upon the classification of the
subject assembly, because chapter 95, note 3, HTSUS,
requires that a parts provision shall prevail over a
specific provision for such part.
This brings us to the question of the use of the goods. If
they are used as parts and accessories of gymnasium or other
exercise articles or equipment, then the treadmill electronic
monitors are classifiable under subheading 9506.91 and dutiable
at the general rate of 4.64 percent ad valorem.
We next address the authority that you cite for your
position. In HR 087550 (February 28, 1991), Customs classified
several heart rate monitors and pulsemeters of one manufacturer
that were mounted on exercise bicycles. In determining that
subheading 9029.20, HTSUSA, was applicable, Customs inexplicably
did not take into consideration Note 3 to Chapter 95. Had we
done so, we would have reached a different result. That decision
does not reflect the current view of the Customs Service.
You further rely upon HR 081571 (July 20, 1988), wherein
Customs classified a cyclocomputer under item 711.93, TSUS and
offered an advisory non-binding opinion of classification under
subheading 9029.20, HTSUSA, in anticipation of the adoption of
the HTSUS. Since the goods in that case were used on bicycles,
not stationary exercise cycles, we find that case to be of no
help in this classification issue.
You also rely upon HR 085198 (November 17, 1989) for the
proposition that Additional U.S. Rule of Interpretation 1(c) read
in conjunction with Note 3, Chapter 95, HTSUSA, requires
classification of the subject goods under residual tariff item
9029.20.4080, HTSUSA. We find nothing in that decision to
support your conclusion. Classification therein was not based
upon Additional U.S. Rule of Interpretation 1(c) due to the fact
that there was no "specific provision" for photographic
flashlight reflectors. In this case, similarly, there is no
specific provision for treadmill electronic monitors. The goods,
"principally used for the purposes for which designed, i.e., as
accessories for photographic flashlight apparatus," were
classified as other accessories for flashlight apparatus under
subheading 9006.99, HTSUSA, obviously an application of
Additional U.S. Rule of Interpretation 1(a). In any event, HR
953141, supra, correctly states that chapter notes control over
the Additional U.S. Rules of Interpretation, and chapter notes
squarely redound to the classification of treadmill electronic
monitors.
We are compelled to note here our fundamental disagreement
with your analysis of Additional U.S. Rule 1(c). It is claimed
that when the application of Rule 3 to Chapter 95 is in issue,
"Note 3 simply alters the use provision or Rule 1(c)." This
strained interpretation of Additional U.S. Rule 1(c) has no
apparent rationale in law except to defeat a clearly set out
statutory scheme. It is manifestly evident that Rule 3 provides
"special language or context which otherwise requires" the
directions of Rule 3 to be followed. Those directions are to
classify the part with the article of Chapter 95 to which it
belongs. Once that context or special language has been
established, counsel would have us re-examine Rule 1(c) to see if
new life may be breathed into it. This approach is backwards
because at the GRI 1 level, the provisions of the Additional U.S.
Rules would not be resorted to when there are clear instructions
in the relevant Chapter Note.
In summary, treadmill electronic monitors are to be
classified in accordance with their principal use as parts of
gymnasium or other exercise articles and equipment (subheading
9506.91, HTSUSA). The manufacturer identifies and sells the
merchandise as treadmill electronic monitors, and such conduct is
indicative of "use", Vilem B. Haan v. U.S., 67 Cust.Ct. 104, C.D.
4260 (1971) and J.C. Penney v. U.S., 10 CIT 727 (1986).
Treadmill electronic monitors principally used as parts of
treadmills are classifiable under subheading 9506.91.0030,
HTSUSA.
HOLDING:
Treadmill electronic monitors principally used as parts of
treadmills are properly classifiable under subheading
9506.91.0030, HTSUSA, a provision for articles and equipment for
athletics, parts and accessories thereof; other gymnasium or
other exercise articles and equipment; parts and accessories
thereof; other. Merchandise classifiable under the foregoing
provision is dutiable at the general rate of 4.64 percent ad
valorem.
Sincerely,
John Durant, Director