CLA-2 OT:RR:CTF:EMAIN HQ H266056 NCD
Center Director
Consumer Products & Mass Merchandising CEE
U.S. Customs and Border Protection
1 East Bay Street
Savannah, Georgia 31401
Attn: Steve Larsen, Supervisory Import Specialist
Re: Protest and Application for Further Review No: 3005-15-100038; Classification of “Acupressure Massage Mat” encasements
Dear Center Director:
The following is our decision as to Protest and Application for Further Review No. 3005-15-100038, timely filed on April 21, 2015 on behalf of Spoonk Space Ltd. (“Spoonk Space” or “Protestant”), concerning classification of encasements for “Acupressure Massage Mats” under the Harmonized Tariff Schedule of the United States (HTSUS). The merchandise at issue was entered with and liquidated by U.S. Customs and Border Protection (CBP) at the Port of Blaine (“the Port”). Protestant asserts that CBP’s classification of the subject merchandise at liquidation is incorrect.
FACTS:
As imported, the subject merchandise consists of rectangular hemp or cotton encasements whose topmost surfaces are equipped with numerous small plastic discs. The discs are set apart at uniform intervals and are each capped with several sharp protrusions characterized by Protestant as “stimulation points.” Each encasement contains 6,210 total stimulation points and is designed to house a foam insert. When combined, the encasement and foam insert form an “Acupressure Massage Mat.” We note that while Protestant describes the merchandise as complete “Acupressure Massage Mats,” the samples received by CBP did not include the foam inserts.
According to Protestant, complete Acupressure Massage Mats function as implements for the induction of relaxation and the relief of tension and pain. Specifically, when the mat is laid or stood upon, the above-mentioned stimulation points apply pressure along the epidermal surfaces of the user’s back, stomach, and feet. This in turn increases circulation, relaxes stiff muscles, and decreases pain. Protestant also contends that the mats are registered and approved as medical devices by the U.S. Food and Drug Administration (“FDA”). Of the encasements at issue, some, but not all, were accompanied at entry by textile carrying cases.
The subject merchandise was entered on November 13, 2014 in heading 9019, HTSUS, specifically subheading 9019.10.20, HTSUS, which provides for “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: Mechano-therapy appliances; massage apparatus; psychological aptitude-testing apparatus; parts and accessories thereof: Mechano-therapy appliances and massage apparatus; parts and accessories thereof.” CBP at the Port liquidated the merchandise on February 20, 2015 in heading 3926, HTSUS, specifically subheading 3926.90.99, HTSUS, which provides for “Other articles of plastics and articles of other materials of headings 3901 to 3914: Other: Other.” Protestant claims classification as entered.
ISSUE:
Whether the subject Acupressure Massage Mats covers are properly classified in heading 3926, HTSUS, as other articles of plastic, in heading 6307, HTSUS, as other made up articles, or in heading 9019, HTSUS, as parts of massage apparatus.
LAW AND ANALYSIS:
Initially, we note that the matter protested is protestable under 19 U.S.C. §1514(a) (2) as a decision on classification. The protest was timely filed within 180 days of liquidation of the first entry. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429, § 2103(2) (B) (ii), (iii) (codified as amended at 19 U.S.C. § 1514(c) (3) (2006)). Further Review of Protest No. 3005-15-100038 is properly accorded to Protestant pursuant to 19 C.F.R. § 174.24(b) because Protestant alleges that the decision against which the protest was filed involves novel questions of law.
Merchandise imported into the United States is classified under the HTSUS. Tariff classification is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all purposes.
GRI 1 requires that classification be determined first 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 heading and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order. GRI 2(b) states, in pertinent part, that “[a]ny reference to goods of a given material or substance shall be taken to include a reference to goods consisting wholly or partly of such material or substance” and that “classification of goods consisting of more than one material or substance shall be according to the principles of rule 3.” GRI 3(b) provides that "composite goods consisting of different materials or made up of different components” are to be classified, where possible, “as if they consisted of the material or component which gives them their essential character.”
The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System 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).
The 2014 HTSUS provisions under consideration in the instant case are as follows:
3926 Other articles of plastics and articles of other materials of headings 3901 to 3914:
3926.90 Other:
3926.90.99 Other
6307 Other made up articles, including dress patterns:
6307.90 Other:
Other:
6307.90.98 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
As stated above, Protestant claims that the subject merchandise is classified in heading 9019, HTSUS, which applies, inter alia, to “massage apparatus” and to “parts thereof.” Because the articles are incomplete in their condition as imported, insofar as they lack the foam inserts that render them complete Acupressure Massage Mats, they cannot be considered complete “massage apparatus.” As such, we consider whether they can be considered “parts” of massage apparatus classifiable in the heading.
To this end, we first consider whether the complete Acupressure Massage Mats can in fact be described as “massage apparatus.” The descriptor “massage” is not defined in the HTSUS. As such, it must be construed in accordance with its common meaning, which may be ascertained by reference to dictionaries and other authorities, as well as pertinent ENs. See Tyco Fire Prods. v. United States, 841 F.3d 1353, 1357 (Fed. Cir. 2016). Various dictionaries define “massage” as the “manipulation” of muscles, joints and tissue by, inter alia, “rubbing, kneading, or tapping” for relaxation or therapeutic purposes. See e.g. Definition Massage, Merriam-Webster, https://?www.merriam-webster.com/dictionary/?massage (last visited Nov. 16, 2017) (defining “massage” as “manipulation of tissues (as by rubbing, kneading, or tapping) with the hand or an instrument for relaxation or therapeutic purposes”); see also Definition Massage, Oxford English Dictionary, https://en.oxforddictionaries.com/?definition/?massage (last visited Nov. 16, 2017) and Definition Massage, Cambridge Dictionary, http://dictionary.cambridge.org/us/?dictionary/?english/?massage (last visited Nov. 16, 2017) (both providing highly similar definitions of “massage”). EN 90.19 defines “massage apparatus” as follows:
(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.).
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.
The following are also regarded as massage apparatus within the meaning of this heading: mattresses designed to prevent or treat bedsores by constantly varying the places at which the weight of the patient’s body rests and also providing a superficial massage effect on tissues liable to necrosis.
The common thread among the above-cited dictionary definitions of “massage” and EN 90.19 is that they all impart an understanding of “massage” as involving active motion, whether manual or mechanical, to induce relaxation and/or pain relief. For example, the dictionary definitions state that a massage entails rubbing, kneading, tapping, or a similar form of tissue manipulation. Consistent with this, EN 90.19 states that massage apparatus are “operated” by hand or power, that they typically operate by means of friction or vibration, and that they may also perform their intended function by “using the action of water or a blend of water and air.” All of the items identified in the EN as examples of “massage apparatus,” including rubber rollers, spa baths, “devices for massaging the breasts,” and mattresses designed for bedsore treatment, require either actuation of moving or projecting components or manual movement of the entire item itself to bring about the desired relaxation or therapeutic effect. Most saliently, the mattresses – the lone items upon which users recline – contain components that shift the user’s weight and provide a “superficial massage effect.”
Here, the Acupressure Massage Mats formed in part by the subject merchandise contain plastic discs with sharp protrusions designed to apply pressure to the feet, body, or back of the user standing or lying atop them. Protestant contends, and we do not contest, that the application of pressure in this manner induces relaxation or serves therapeutic purposes insofar as it relieves tension and pain. However, unlike the exemplars listed in the EN, the mats do not contain any moving components and do not require movement by the user to effect relaxation or tension/pain relief. To wit, an official product FAQ actually cautions users to refrain from moving themselves or the mat once positioned atop it so as to avoid “skin injury.” See Spoonk, Frequently Asked Questions, https://spoonkspace.com/faq/ (last visited Nov. 16, 2017). Users are instead counseled to simply “lie down on” or “stand on” the mats. See Spoonk, Spoonk Organic Hemp – Regular, https://spoonkspace.com/?shop/acupressure-mats/hemp-acupressure-massage-mat/ (last visited Nov. 16, 2017). Passive standing or reclining is not a permissible means of delivering a massage for purposes of heading 9019, inasmuch as the dictionary definitions and EN alike unequivocally indicate that some form of movement – be it rubbing, kneading, vibration, friction, or stream projection – is required. In view of this, the Acupressure Massage Mats cannot be considered “massage apparatus” of heading 9019, HTSUS.
To support its contention that Acupressure Massage Mats can in fact be described as such, Protestant cites various rulings in which articles which ostensibly resemble the mats were classified in heading 9019, HTSUS. These rulings include New York Ruling Letter (“NY”) N057970, dated May 7, 2009; NY L89540, dated January 11, 2006; NY I84980, dated September 10, 2002; NY H80856, dated May 23, 2001; NY G86447, dated January 29, 2001; and NY E84186, dated August 13, 1999. However, unlike the Acupressure Massage Mats, the products at issue in all those rulings required some form of manual movement, either of the user’s body or of the product itself, to effect tissue manipulation and induce relaxation or pain relief. As such, they do not support classification of the Acupressure Massage Mats or their individual components in heading 9019, HTSUS, and in fact reinforce our above-stated position that articles of the heading are operated by some form of motion. See also Headquarters Ruling Letter (“HQ”) 966563, dated February 4, 2004 (“It has been Customs position that the massage apparatus of heading 9019, HTSUS, must…operate by vibration, hydro-therapy or other means that manipulates muscles such as kneading, stroking, etc.”).
Protestant also contends that FDA’s purported recognition of the Acupressure Massage Mats as “medical devices” merits treatment of the mats as “massage apparatus.” The two terms are far from synonymous, however, and in fact denote items that are classified in separate provisions of the HTSUS. Specifically, medical instruments and appliances are classified in heading 9018, HTSUS, rather than in heading 9019. Moreover, FDA determinations issued for purposes of public safety are not dispositive of tariff classification. See HQ H265244, dated June 1, 2015 (citing Amersham Corp. v. United States, 5 C.I.T. 49, 56, 564 F. Supp. 813, 817 (1983)). It therefore remains our position that the Acupressure Massage Mats qualify as “massage apparatus,” or that the subject merchandise can be described as “parts thereof.”
Nor can the subject merchandise be wholly described by either of the other headings at issue, both of which apply to products of a certain material (i.e., plastic or textile) composition. Rather, as combinations of textile covers and plastic discs, they must, pursuant to GRIs 2(b) and 3(b), be classified “as if they consisted of the material or component which gives them their essential character.”* With respect to “essential character” for purposes of GRI 3(b), EN(VIII) to GRI 3(b) states as follows:
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.
Per the EN, and as repeatedly affirmed by the courts, determining a given composite article’s essential character entails applying the above-cited factors – as well as any other relevant one – to the extent that the particular facts of the case may allow. See Alcan Food Packaging (Shelbyville) v. United States, 771 F.3d 1364, 1366 (Fed. Cir. 2014) (“The ‘essential character’ of merchandise is a fact-intensive issue.”); see also Home Depot USA, Inc. v. United States, 491 F.3d 1334, 1337 (Fed. Cir. 2007) (“Many factors should be considered when determining the essential character…?specifically including but not limited to those factors enumerated in Explanatory Note (VIII) to GRI 3(b).”). In some cases, for example, the essential character of a given composite article is that which corresponds to the predominant component in terms of weight, value, surface area, and/or other measurable properties. See Home Depot, U.S.A., Inc. v. United States, 427 F. Supp. 2d 1278, 1292-1356 (Ct. Int’l Trade 2006); see also Tyco Fire Prods. L.P. v. United States, 82 F. Supp. 3d 1340, 1348-50 (Ct. Int’l Trade 2015), aff’d Tyco Fire Prods. v. United States, 841 F.3d 1353, 1360-61 (Fed. Cir. 2016). In others, the comparatively high importance of a component’s role with respect to the effective use of the whole article is ultimately determinative of essential character. See Pomeroy Collection, Ltd. v. United States, 893 F. Supp. 2d 1269, 1288 (Ct. Int’l Trade 2013); Structural Industries v. United States, 360 F. Supp. 2d 1330, 1337-1338 (Ct. Int’l Trade 2005); and Conair Corp. v. United States, 29 C.I.T. 888 (2005).
Indicia of essential character in the latter variety of cases include the indispensability of each component to the functioning of the article, and, particularly where more than one component proves indispensable in this regard, the degree to which each imparts the article with its commercial identity. In Alcan, for example, the Court of International Trade held that the plastic portions of plastic-aluminum seals for military ration pouches imparted the seals’ essential character because they not only “outweigh the aluminum” but also “impart qualities that define [the product] as a flexible food packaging solution for the military.” 929 F. Supp. 2d 1338, 1349-50, aff’d, 771 F.3d 1364 (Fed Cir. 2014). In so doing, the court emphasized that while plastic and aluminum were equally indispensable to the seals, it was the plastic that imbued them with “very different and advanced characteristics from the old C-rations…light, flexible, and easier to transport.” Id.
In applying EN(VIII) and the above-discussed jurisprudence in the instant case, we find that the plastic components impart the essential character of the subject merchandise. With respect to the quantifiable factors listed in the EN, we note that the textile does appear to account for the majority of the covers’ surface area. However, there is no indication that it exceeds the plastic content in terms of weight, bulk, value, or any other property. Protestant contends that the plastic components “hardly predominate by weight, bulk, value or other metrics,” yet has not proffered evidence to suggest otherwise. See Global Sourcing Group, Inc. v. United States, 611 F. Supp. 2d 1367, 1372 (Ct. Int'l Trade 2009) (“Parties challenging decisions by Customs have the burden of proof in overcoming the presumption of correctness.”). In the absence of such, it cannot be said that the quantifiable factors definitively support treatment of the subject merchandise as articles of textile for purposes of GRI 3(b).
Turning to the role of the constituent materials in relation to the use of the merchandise, we find that both the plastic and textile are indispensable to the subject merchandise. The plastic discs are functionally indispensable to the encasements, insofar as their removal would deprive the encasements of the capacity to apply pressure to the user’s feet, body, or back once incorporated into the complete Acupressure Massage Mats. For its part, the textile is structurally indispensable to the extent that it enables incorporation of the discs into the complete Acupressure Massage Mats. However, like the plastic seal in Alcan, it is the plastic discs which impart the commercial identity of the Acupressure Massage Mats and, by extension, the encasements at issue. Absent the plastic discs, the merchandise would consist simply of a cloth encasement whose capacity to induce relaxation and relieve pain would be significantly, if not entirely, diminished. That the plastic is the distinguishing feature of the merchandise is evident in the disproportionate emphasis placed on the role of the “stimulation points” in various product descriptions of Acupressure Massage Mats, both official and unofficial. See Spoonk, Spoonk 100% Cotton – Regular, https://?spoonkspace.com/???shop/?acupressure-mats/cotton-acupressure-mat/ (last visited Nov. 16, 2017) (“The Spoonk Mat works on the simple principle of acupressure…By stimulating increased circulation with 6210 acupressure points on problematic areas.”); see also Product Review: Mat-tastic! Spirituality & Health (July 5, 2013), https:/?/?spiritualityhealth.com/articles/?2013/?07/?05/product-review-mat-tastic (describing Acupressure Massage Mats as “[a] series of small, non-toxic plastic spikes attached to a 27-by-17-inch foam-filled mat stimulate the body’s acupressure points”). In view of this, the plastic imparts the essential character of the subject merchandise, and as such, the merchandise is classified as an “other” article of plastic in heading 3926, HTSUS.
HOLDING:
By application of GRI 3(b), the subject Acupressure Massage Mat covers are classified in heading 3926, HTSUS. They are specifically classified in subheading 3926.90.9980, HTSUSA (Annotated), which provides for “Other articles of plastics and articles of other materials of headings 3901 to 3914: Other: Other: Other.” The 2014 general column one rate of duty for subheading 3926.90.9980, HTSUSA, is 5.3% ad valorem.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the internet at www.usitc.gov/tata/hts/.
You are instructed to DENY the Protest.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the Protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP website at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division