CLA-2 OT:RR:CTF:TCM H053896 RM
Ms. Sylvia Perreira
EGL’s Compliance Source
Eagle Global Logistics
8830 N.E. Alderwood Road
Portland, Oregon 97220
RE: Revocation of New York Ruling Letter N013185, dated July 12, 2007; Classification of the “Finger Vibrator”
Dear Ms. Perreira:
This is in reference to New York Ruling Letter (“NY”) N013185, dated July 12, 2007, issued to you on behalf of Church & Dwight Co. Inc., concerning the tariff classification of a sex toy commercially known as the “Finger Vibrator.” In that ruling, U.S. Customs and Border Protection (“CBP”) classified the merchandise under heading 8543, Harmonized Tariff Schedule of the United States (“HTSUS”), as “Electrical machines and apparatus, having individual functions, not specified or included elsewhere in [chapter 85].” We have reviewed the ruling and found this classification to be incorrect.
FACTS:
In N013185, CBP described the merchandise as follows:
The article concerned is the Finger Vibrator. The product measures approximately 2 inches long x .75 inches wide. It consists of a soft, silicone plastic, finger-shaped housing. The back of the device incorporates a ring shaped band which is placed over the user’s finger. Within the housing
is a battery-operated, electric vibrator mechanism. The Finger Vibrator is activated by pressing a button located on the bottom of the device …. [T]he Finger Vibrator’s function is to provide a massage for “intimate personal pleasure.”
ISSUE:
Whether the “Finger Vibrator” is classified under heading 9019, HTSUS, as a massage apparatus.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRIs”). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that 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 GRIs 2 through 6 may then be applied in order.
The 2009 HTSUS provisions under consideration are as follows:
8543 Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter; parts thereof:
8543.70 Other machines and apparatus:
8543.70.96 Other …
* * *
9019 Mechano-therapy appliances; massage apparatus; psychological aptitude-testing apparatus; ozone therapy, oxygen therapy, aerosol therapy, artificial respiration or other therapeutic respiration apparatus; parts and accessories thereof:
9019.10 Mechano-therapy appliances; massage apparatus;
psychological aptitude-testing apparatus; parts and
accessories thereof:
9019.10.20 Mechano-therapy appliances and massage
apparatus; parts and accessories thereof …
* * *
Heading 9019, HTSUS, provides in relevant part for “Massage apparatus.” When, as in this case, a tariff term is not defined by the HTSUS or its legislative history, “the term’s correct meaning is its common meaning.” Mita Copystar Am. v. United States, 21 F.3d 1079, 1082 (Fed. Cir. 1994). The common meaning of a term used in commerce is presumed to be the same as its commercial meaning. Simod Am. Corp. v. United States, 872 F.2d 1572, 1576 (Fed. Cir. 1989). To ascertain the common meaning of a term, a court may consult “dictionaries, scientific authorities, and other reliable information sources” and “lexicographic and other materials.” C.J. Tower & Sons v. United States, 673 F.2d 1268, 1271 (CCPA 1982); Simod, 872 F.2d at 1576.
The Oxford English Dictionary defines the term “massage” as “the rubbing, kneading, or percussion of the muscles and joints of the body with the hands, usually performed by one person on another, esp. to relieve tension or pain; an instance of this.” See www.oed.com. The term “apparatus” is defined in pertinent part as “the things collectively in which this preparation consists, and by which its processes are maintained; equipments, material, mechanism, machinery; material appendages or arrangements.” Id. In keeping with the above definitions, the Explanatory Notes (“ENs”) to heading 9019 [EN 90.19 (II)] indicate that massage apparatus are:
[a]pparatus 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, and may be of an electro-mechanical type with a motor built into 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.).
This group includes simple rubber rollers or similar massaging devices. It also covers hydromassage appliances for all-over or partial massage of the body, using the action of water or a blend of water and air under pressure.
Examples of these appliances include spa baths, presented complete with pumps, turbines or blowers, ducts, controls and all fittings; devices for massaging the breasts, using the action of water distributed by a series of small nozzles mounted inside a form fitted over the breast, and made to revolve by a stream of water introduced through a flexible tube.
* * *
In NY N03185, CBP indicated that to be classified as a massage apparatus, a device must not only manipulate muscles by way of kneading, stroking, vibration, etc., but also provide a therapeutic benefit. Upon review, based on the common meaning of the term massage, and the ENs, we find that our interpretation of the heading text in that ruling was too narrow. The text of heading 9019, HTSUS, does not require that a massage apparatus provide a therapeutic benefit.
The Finger Vibrator is a power-operated, electro-mechanical apparatus designed to massage muscles of the body by way of friction and vibration. As such, it is classified under heading 9019, HTSUS, as a “massage apparatus.” See EN 90.19(II). Insofar as the device is classified therein, it is precluded from classification under heading 8543, HTSUS, by the terms of that heading, because it is specified elsewhere in the tariff.
Our determination is in accord with NY L81893, dated February 28, 2005, and NY B89414, dated October 8, 1997, wherein CBP classified similar battery-operated, vibrating sex toys under heading 9019, HTSUS, as massage apparatus.
HOLDING:
By application of GRI 1, the Finger Vibrator is classified under heading 9019, HTSUS, specifically in subheading 9019.10.20, as “Massage apparatus: … massage apparatus: … massage apparatus.” The 2009, column one, general rate of duty is: Free.
Duty rates are provided for convenience only and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.
EFFECT ON OTHER RULINGS:
NY N013185, dated July 12, 2007, is hereby revoked.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division