CLA-2 RR:CTF:TCM H003373 BtB
Mr. Jeff Hui
Jing, Inc.
1852 Langley Ave.
Irvine, CA 92614
Re: Classification of “Silhouwell Fit” pod and “Silhouwell Comfort” pod;
NY M81992 revoked
Dear Mr. Hui:
Based on your letter dated September 18, 2006, U.S. Customs and Border Protection (“CBP”) has determined that New York Ruling Letter (“NY”) M81992, issued to you on April 6, 2006, is in error. We thank you for bringing the fact that the merchandise was not described correctly in NY M81992 to our attention.
In NY M81992, CBP found the two machines at issue, the “Silhouwell Fit” and the “Silhouwell Comfort,” to be a single composite good and classified it, pursuant to General Rule of Interpretation 3(b), in subheading 9506.91.0030, Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”), which provides for: “Articles and equipment for general physical exercise, 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: Other: Articles and equipment for general physical exercise, gymnastics or athletics; parts and accessories thereof.”
This ruling revokes NY M81992 and sets forth the correct classification of the
“Silhouwell Fit” pod and “Silhouwell Comfort” pod. Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C. 1625(c)), 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 M81992 was published in the Customs Bulletin, Volume 41, Number 10, on February 28, 2007. CBP received no comments during the notice and comment period that closed on March 30, 2007.
FACTS:
The articles at issue are manufactured in Italy by a company identified as “Intégrée.” In NY M81992, the merchandise at issue was described as follows:
You are requesting the tariff classification on a product that is identified as a Silhouwell. There are two styles as follows: the Silhouwell Fit and the Silhouwell Comfort. There has been no item number designated for this product. The Silhouwell Fit is an exercise machine that encloses the user up to the chest area while pedaling for exercise. The machine incorporates lights and heat for the comfort of the user. In addition, the machine has a built-in DVD player and viewing screen. The Silhouwell Comfort has the same features as the Silhouwell Fit, but it also has a vibrating mat for the comfort of the exerciser. An illustration was submitted, in lieu of a sample.
The description in NY M81992 set forth for the Silhouwell Fit is correct. This machine or “pod,” measuring 8 feet in length, 3 feet in width, and 4 feet in height, was further described in a national publication as follows:
Essentially a lounge-positioned stationary bike, the pod heats to between 35 and 37 degrees Celsius (95 to 98.6 degrees Fahrenheit). As users pedal toward their target heart-rate, the hypothalamus is stimulated. This action … ‘jolts your body into burning fat.’
In your letter to us dated September 18, 2006, you stated the following regarding the Silhouwell Fit:
The main function of the machine is the bicycle pedal inside which the user pedals in order to exercise. The machine also has heaters at a temperature of 35 degrees Celsius to keep the body warm while pedaling. Another function is the chromatherapy which are colored lights that provide mood lighting and atmosphere, promoting feelings of wellbeing. The machine also has a DVD player and screen for the user to watch videos while pedaling (for entertainment purposes).
The description in NY M81992 set forth for the Silhouwell Comfort is not correct. This machine, also measuring 8 feet in length, 3 feet in width, and 4 feet in height, was described in the same national publication as:
Comfort … is used in conjunction with Intégrée essential oils to drain excess fluid from the body. After sliding into its ergonomically designed seat, the pod heats to 65 to 78 degrees Celsius (149 to 172 degrees Fahrenheit) and vibrates gently. “The vibration and the heat therapy paired with the sitting position, which is optimal for drainage, is what makes it effective.”
In your letter to us dated September 18, 2006, you stated the following regarding the Silhouwell Comfort:
This machine does NOT have a bicycle pedal. The main function for Comfort is the vibrating mat that the user sits on while in the enclosed environment, which is used primarily for relaxation and massage. This machine also has heaters that provide heat at a temperature of 65-70 degrees Celsius. This also keeps the body warm and helps to provided [sic] added feelings of relaxation. The machine has chromatherapy and a DVD player just like the Fit machine.
You also clarified the difference between the machines at issue:
Your original ruling classified both machines as one composite machine. However, I just want to clarify that the machines are in fact 2 different machines. They look identical from the outside, but Fit has a bicycle pedal and Comfort has a vibrating mat with NO pedal….
They are sold together but they can be used separately. The two machines are sold together to beauty spas or similar service oriented businesses. The machines are not meant for resale to the retail consumer.
The pods are suited for commercial or residential use. The description in the national publication referenced above clearly identifies the purpose of both of the pods:
Intégrée Silhouwell pods look like bumper cars, but these cocoonlike seats have a more mature mission. The primary components in a multistep wellness system designed to promote weight loss, the pods target excess water retention and stubborn body fat (Emphasis Added).
ISSUE:
What is the classification of the Silhouwell Fit pod and the Silhouwell Comfort pod?
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." If the 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).
The Silhouwell Fit pod and the Silhouwell Comfort pod are separate machines. Although they are sold together, they are classified separately. Contrary to the analysis in NY M81992 the machines, together, do not constitute a single composite good.
The Silhouwell Fit pod and the Silhouwell Comfort pod are both articles that incorporate several components. The Silhouwell Fit incorporates a lounge-positioned stationary bike, heaters, lights, and DVD player with viewing monitor. Each of the components in the machine is classified in different headings. Based on the additional information provided, we believe that the stationary bike is classified in heading 9506, HTSUSA, as physical exercise equipment, that the heaters are classified in heading 8516, HTSUSA, as electric heating apparatus, the lights are classified in heading 9405, HTSUSA, as other lighting, and the DVD player with monitor is classified in heading 8528, HTSUSA, as a video monitor incorporating video recording or reproducing apparatus.
Meanwhile, the Silhouwell Comfort incorporates a vibrating seat apparatus, heaters, lights, DVD player and monitor. Each of the components in the machine is also classified in different headings. Based on the additional information provided, we believe that the vibrating seat apparatus is classified in heading 8543, HTSUSA, as an electrical machine or apparatus, having individual functions, not specified or included elsewhere in Chapter 85, that the heaters are classified in heading 8516, HTSUSA, as electric heating apparatus, the lights are classified in heading 9405, HTSUSA, as other lighting, and the DVD player with monitor is classified in heading 8528, HTSUSA, as a video monitor incorporating video recording or reproducing apparatus.
We have considered whether the vibrating seat apparatus may be classified in heading 9019, HTSUSA, as massage apparatus based on your statement that “[t]he main function for Comfort is the vibrating mat that the user sits on while in the enclosed environment, which is used primarily for relaxation and massage.” However, a review of all of the materials available to us evidences that the pods are “… designed to promote weight loss” by targeting “excess water retention and stubborn body fat.” In light of this fact, the pods are not classifiable as massage apparatus in heading 9019, HTSUSA.
There is no single heading that specifically and completely describes the machines at issue. Because the articles are prima facie classifiable under two or more headings, they cannot be classified according to GRI 1.
In pertinent part, GRI 2(b) provides that any reference in a heading to a material or substance shall be taken to include a reference to mixtures or combinations of that material or substance with other materials or substances. However, GRI 2(b) adds that the classification of goods consisting of more than one material or substance shall be according to the principles of rule 3. Accordingly, GRI 3 is utilized when, by application of GRI 2(b), a good consists of materials or substances which are prima facie classifiable under two or more headings.
GRI 3(a) states that when goods are prima facie classifiable under two or more headings, classification shall be effected as follows:
The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.
In this instance, several headings are equally specific in relation to one another. As we cannot classify these goods pursuant to GRI 3(a), we turn to GRI 3(b), which states:
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.
To determine whether the merchandise constitutes a composite good, we look to Explanatory Note IX to GRI 3(b), which states in pertinent part:
For the 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 the case at hand, each pod is composed of four components that are attached to form an inseparable whole. Consequently, the articles are composite goods. Thus, we must determine which component imparts the essential character to each pod. Explanatory Note (EN) VIII to GRI 3(b) states:
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.
In regard to the Silhouwell Fit pod, it is the lounge-positioned stationary bike that imparts the essential character of the article because the bike is central to the function of the machine. The user is active on the machine. Pedaling towards a target heart rate stimulates the hypothalamus and, as you stated, “jolts your body into burning fat.” We recognize that the heaters are secondarily important to the function of the machine. However, the heaters only heat the machine up to between 95 and 98.6 degrees Fahrenheit. While the heaters may also aid in calorie burning, we believe that it is the physical activity done on the bike through which most fat burning will occur, thereby making the stationary bike the most important component in regard to weight loss, the goal of using the Silhouwell Fit Pod. Consequently, the Silhouwell Fit pod is classified, at the heading level, as a stationary bike under heading 9506. At the ten-digit level, the Silhouwell Fit pod is classified in subheading 9506.91.0030, HTSUSA, which provides for: “Articles and equipment for general physical exercise, 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: Other: Articles and equipment for general physical exercise, gymnastics or athletics; parts and accessories thereof.” We note that the Silhouwell Fit pod was classified in this provision in NY M81992, but the analysis was not correct.
In regard to the Silhouwell Comfort pod, it is the heaters that impart the essential character of the article because the heaters are central to the function of the machine. The user is passive on this machine. Unlike the Silhouwell Fit pod, the Silhouwell Comfort pod does not incorporate a component on which the user can exercise. Instead, the user simply sits on an ergonomically designed seat that vibrates. The heat in the pod is then turned up to as high as 149 to 172 degrees Fahrenheit. It is the high temperature generated by the heaters that will primarily cause a user to sweat and drain fluid when using the pod, the goal of using the Silhouwell Comfort pod. We recognize that the vibrating seat apparatus is secondarily important to the function of the machine. The apparatus puts the user in a position that is optimal for drainage and gently vibrates. While this action may aid in the process, it is the heat that will cause the user to sweat and release fluid from the body, the goal of using the Silhouwell Comfort pod. Consequently, the Silhouwell Comfort pod is classified in heading 8516, specifically in subheading 8516.29.0090, HTSUSA, which provides for: “Electric instantaneous or storage water heaters and immersion heaters; electric space heating apparatus and soil heating apparatus; electrothermic hairdressing apparatus (for example, hair dryers, hair curlers, curling tong heaters) and hand dryers; electric flatirons; other electrothermic appliances of a kind used for domestic purposes; electric heating resistors, other than those of heading 8545; parts thereof: Electric space heating apparatus and electric soil heating apparatus: Other, Other.”
HOLDING:
By application of GRI 3(b), the Silhouwell Fit pod is classified in heading 9506, HTSUSA. It is specifically provided for in subheading 9506.91.0030, HTSUSA, which provides for: “Articles and equipment for general physical exercise, 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: Other: Articles and equipment for general physical exercise, gymnastics or athletics; parts and accessories thereof.” The applicable column one (general) rate of duty under the 2007 HTSUSA is 4.6% ad valorem.
By application of GRI 3(b), the Silhouwell Comfort pod is classified in heading 8516, HTSUSA. It is specifically provided for in subheading 8516.29.0090, HTSUSA, which provides for: “Electric instantaneous or storage water heaters and immersion heaters; electric space heating apparatus and soil heating apparatus; electrothermic hairdressing apparatus (for example, hair dryers, hair curlers, curling tong heaters) and hand dryers; electric flatirons; other electrothermic appliances of a kind used for domestic purposes; electric heating resistors, other than those of heading 8545; parts thereof: Electric space heating apparatus and electric soil heating apparatus: Other, Other.” The applicable column one (general) rate of duty under the 2007 HTSUSA is 3.7% ad valorem.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUSA and the accompanying duty rates are provided on the world wide web at www.usitc.gov.
EFFECT ON OTHER RULINGS:
NY M81992, dated April 6, 2006, is 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 and Trade Facilitation Division