CLA-2 OT:RR:CTF:TCM H061737 CkG
TARIFF NO: 6109.90.10, 6110.30.30, 6212.10.90, 9029.90.80
Port Director
U.S. Customs and Border Protection
3150 Tchulahoma Road Suite 1
Memphis, TN 38118
RE: Request for Internal Advice on the classification of NuMetrex “heart sensing apparel”; Internal Advice # 09/013
Dear Port Director,
This letter is in reply to your memorandum, dated April 10, 2009, forwarding a request for internal advice pertaining to the tariff classification of “heart-sensing apparel” imported by Textronics, Inc.
FACTS:
The merchandise at issue is described as NuMetrex™ sports bra, tank tops, cardio shirts and chest straps. The merchandise was entered between June 19, 2007, and November 10, 2007.
Three samples (the women’s tank top, men’s cardio shirt, and sports bra) were submitted to this office for consideration. No sample of the chest strap was provided.
The men’s cardio shirt is constructed from 85% nylon, 10% polyester, 5% spandex finely knit fabric. The garment is sleeveless with a low, round front neckline, a rear neckline that falls just below the nape of the neck, and a tubular knit bottom. An opening on the inside fold creates a small pocket, with two metal snap closures attached. The lining on the inside fold contains “textile based sensors” capable of sensing the wearer’s heart beat. The snaps are designed to hold a separately sold transmitter that relays the wearer’s heart rate data to a compatible watch.
The sports bra is made of 94% nylon and 6% spandex knit fabric. The crop-style garment features two-ply fabric, a two-inch wide elasticized bottom band, a U-shaped neckline and a T-style back. The garment also features two snap closures located on the front portion of the bottom band. The lining on the bottom band contains “textile based sensors” capable of sensing the wearer’s heart beat. The snaps are designed to hold a separately sold transmitter that relays the wearer’s heart rate data to a compatible watch.
The women’s tank top is made of 94% nylon and 6% spandex knit fabric. The garment is sleeveless with a U-shaped neckline, a T-style back, a tubular knit bottom, and features a built-in shelf bra. An opening on the inside fold creates a small pocket, with two metal snap closures attached. The front portion of the bottom of the built in shelf bra contains “textile based sensors” capable of sensing the wearer’s heart beat. The snaps are designed to hold a separately sold transmitter that relays the wearer’s heart rate data to a compatible watch.
The textile chest strap is an elastic band of nylon fabric which features an adjustable fastener on the back, and sewn in textile based sensors capable of sensing the wearer’s heart beat. Two metal snap closures attached to the fabric are designed to hold a separately sold transmitter that relays the wearer’s rate to a compatible watch.
The watch and transmitter are sold separately.
ISSUE:
Whether the NuMetrex™ Sports Bra, tank top, cardio shirt and chest strap are classifiable as tachometers or parts and accessories thereof of heading 9029, HTSUS, knitted apparel of headings 6109, 6110, 6212, HTSUS, or other made up textiles of heading 6307, HTSUS?
LAW AND ANALYSIS:
Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes and, provided such headings or notes do not otherwise require, according to the remaining GRIs 2 through 6.
The HTSUS provisions under consideration are as follows:
6109: T-shirts, singlets, tank tops and similar garments, knitted or crocheted:
6109.90: Of other textile materials:
6109.90.10: Of man-made fibers….
* * * * *
6110: Sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted:
6110.30: Of man-made fibers:
6110.30.30: Other….
* * * * *
6212: Brassieres, girdles, corsets, braces, suspenders, garters and similar articles and parts thereof, whether or not knitted or crocheted:
6212.10: Brassieres:
6212.10.90: Other…..
* * * * *
6307: Other made up articles, including dress patterns:
6307.90: Other:
6307.90.98: Other…..
* * * * *
9029: Revolution counters, production counters, taximeters, odometers, pedometers and the like; speedometers and tachometers, other than those of heading 9014 or 9015; stroboscopes; parts and accessories thereof:
9029.20: Speedometers and tachometers; stroboscopes
9029.20.40: Other speedometers and tachometers
9029.90: Parts and accessories:
9029.90.80: Other
* * * * *
Chapter 90, Note 2 states:
Subject to note 1 above, parts and accessories for machines, apparatus, instruments or articles of this chapter are to be classified according to the following rules:
(a) Parts and accessories which are goods included in any of the headings of this chapter or of chapter 84, 85 or 91 (other than heading 8487, 8548 or 9033) are in all cases to be classified in their respective headings;
(b) Other parts and accessories, if suitable for use solely or principally with a particular kind of machine, instrument or apparatus, or with a number of machines, instruments or apparatus of the same heading (including a machine, instrument or apparatus of heading 9010, 9013 or 9031) are to be classified with the machines, instruments or apparatus of that kind;
(c) All other parts and accessories are to be classified in heading 9033.
* * * * *
The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
EN 90.29 provides, in pertinent part, as follows:
(B) SPEED INDICATORS AND TACHOMETERS
These instruments differ from the revolution counters and production counters of Part (A) above in that they indicate the number of revolutions, speed, output, etc., per unit of time (e.g., revolutions per minute, miles per hour, kilometres per hour, metres per minute).
* * * * *
Stedman’s Medical Dictionary, 23rd Ed., Williams & Wilkins Company (1976) defines “tachometer” as follows:
An instrument for measuring the speed or rate of something; e.g., revolutions of a shaft, heart rate (cardiotachometer), arterial blood flow (hemotachometer)…
See also Taber’s Cyclopedic Medical Dictionary, 14th Ed., F.A. Davis Company (1981).
* * * * *
Counsel for the importer claims that the instant merchandise should be classified as a tachometer of heading 9029, HTSUS. Alternatively, counsel contends that the merchandise is classified as “part” of a tachometer. Counsel concedes that the subject merchandise may “arguably” be considered articles of apparel, but argues that its primary use is essentially that of a “wearable heart rate monitor,” i.e., as a tachometer of heading 9029, HTSUS.
Counsel for the importer cites to New York Ruling Letter (NY) N017407, dated October 10, 2007, in support of classification in heading 9029, HTSUS. In N017407,
CBP classified a “chest strap” with attached electrodes, transmitter, and receiver/display unit as a tachometer of heading 9029, HTSUS. The textile strap at issue was imported together with a transmitter and receiver—both necessary components if the subject articles are to function as tachometers.
The instant merchandise, by itself, does not function as a tachometer, because the “textile-based sensors” do not measure or record the wearer’s heart rate. See EN 90.29; Stedman’s Medical Dictionary, 23rd Ed., Williams & Wilkins Company (1976). The embedded sensors merely detect the heart beat; the accompanying transmitter and watch interpret and display the data. The heart-sensing apparel is imported alone, without the transmitter and watch. Therefore, we will next consider whether the subject apparel, in its condition as imported, is classifiable as a part or accessory to a tachometer heading 9029, HTSUS.
As required by Note 2(b) to Chapter 90, if the subject articles are to be classified in heading 9029, HTSUS, as tachometer parts, they must be suitable for use solely or principally with a device of heading 9029, HTSUS. Whether they are to be considered wearing apparel also depends on their use. See Admiral Craft Equipment Corp. v. United States, 82 Cust. Ct. 162, 164, C.D. 4796 (1979).
Classification under a principal use provision is governed by Additional U.S. Rule of Interpretation 1(a), HTSUS, which states that “a tariff classification controlled by use (other than actual use) is to be determined in accordance with the use in the United states at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use.” General criteria for determining “class or kind” with respect to classification were set forth in United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F. 2d 373 (1976), cert. denied, 429 U.S. 979. Those criteria include: general physical characteristics, the expectation of the ultimate purchaser, channels of trade, environment of sale (accompanying accessories, manner of advertisement and display), use in the same manner as merchandise which defines the class, economic practicality of so using the import, and recognition in the trade of this use.
The marketing of the chest strap focuses primarily on the comfort of the fabric; however, the strap also serves no particular purpose other than to secure the transmitter to signal the tachometer. The NuMetrex chest strap alone, therefore, is classifiable as a part of a tachometer of heading 9029, HTSUS, because it is suitable for use solely or principally with a good of heading 9029, HTSUS.
The physical characteristics of the remaining merchandise are clearly that of wearing apparel. They have the character of fully formed tank tops and bras that can be worn in a variety of circumstances, including for comfort, adornment or protection. The textile sensors may function in a similar manner as electrodes, but they remain textile fibers nonetheless and do not change the character of the garments.
In Daw Industries v. United States, 1 Fed. Cir. 146, 150 (1983), the Court of Appeals for the Federal Circuit noted that virtually all wearing apparel is to a degree (often a high degree) designed and worn to provide comfort and protection, often for very specific situations. The pivotal issue is whether the incremental difference in the article to be used in a specific situation has become so large that the article is no longer wearing apparel. In that respect, we do not find the additional use of the article is so large that it is no longer wearing apparel.
The design of the NuMetrex garments provides them with a clear and independent use as wearing apparel. The transmitter and watch are sold separately by the importer. Were any of these additional components to fail, even the textile sensors, the garments could be used for comfort, adornment or protection, as any other article of apparel. However, if the garments themselves were torn or stained beyond repair, the tachometer function would be of little use and the garments would likely be discarded. The additional tachometer components can further be used independently of the garments.
The remaining Carborundum factors are inconclusive with respect tot the principal use of the Numetrex garments. The garments are imported and sold without the transmitter and watch, and are marketed and advertised as wearing apparel. However, the environment of sale, including the cost of the garments, focuses equally on the ability of the garments, in conjunction with the transmitter and watch display, to function as a heart-rate sensing device.
While the NuMetrex garments are intended to be used in conjunction with the transmitter and watch, they are not of a class or kind with these items, or with other parts of a device of heading 9029, HTSUS. The design and character of the NuMetrex garments indicate that they are of a class or kind of apparel worn for comfort, adornment and protection. There is no evidence that they are used solely or principally as goods of heading 9029, HTSUS. The NuMetrex tank top and cardio shirt are thus classified in headings 6109 and 6010, HTSUS, and the sports bra is classified in heading 6112, HTSUS.
HOLDING:
By application of GRI 1, the subject articles are classified as follows:
The NuMetrex women’s tank top is classified in subheading 6109.90.10, HTSUS, which provides for “T-shirts, singlets, tank tops and similar garments, knitted or crocheted: Of other textile materials: Of man-made fibers.” The 2009, column one, general rate of duty is 32% ad valorem.
The NuMetrex men’s cardio shirt is classified in subheading 6110.30.30, HTSUS,
which provides for “Sweaters, pullovers, sweatshirts, waistcoats (vests) and similar \
articles, knitted or crocheted: Of man-made fibers: Other.” The 2009, column one,
general rate of duty is 32% ad valorem.
The NuMetrex sports bra is classified in subheading 6212.10.90, HTSUS, which
provides for “Brassieres, girdles, corsets, braces, suspenders, garters and similar
articles and parts thereof, whether or not knitted or crocheted: Brassieres: Other.” The
2009, column one, general rate of duty is 16.9% ad valorem.
The NuMetrex chest strap is classified in subheading 9029.90.80, HTSUS, which
provides for “Revolution counters, production counters, taximeters, odometers,
pedometers and the like; speedometers and tachometers, other than those of heading
9014 or 9015; stroboscopes; parts and accessories thereof: Parts and accessories:
Other.” The 2009, column one, general rate of duty is Free.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division