OT:RR:CTF:EMAIN HQ H301594 NVF
Ms. Elisabeth Johnson
Phil Patterson, Inc.
1011 Ellison Ave.
Omaha, NE 68110
RE: Tariff classification of AccuForm cushions
Dear Ms. Johnson:
This is in response to your request for a binding classification ruling, dated September 11, 2018, filed on behalf of Medtec Inc., dba Civco Radiotherapy (“Civco”), for certain AccuForm cushions which Civco intends to import from Japan. In reaching our decision, we have considered information presented in your September 11, 2018 request and supplemental information provided on September 26, 2018 and November 27-28, 2018.
FACTS:
AccuForm cushions are made from a soft polypropylene fabric filled with tiny polystyrene beads which are coated with water-curable resin. The cushions are intended for use in gamma radiation treatment (“radiotherapy”) or imaging to help support and immobilize a patient’s neck and head. Before it is used, the AccuForm cushion is sprayed with water, which makes the polystyrene bead filling pliable and permits it to be molded to a patient’s head and neck. When it is dry, the cushion forms a rigid custom mold which supports the patient’s head and neck during radiotherapy or radiation imaging.
In your request for a classification ruling, you assert that the AccuForm cushions should be classified under subheading 9022.90.9500, HTSUS, which covers parts and accessories of apparatus based on the use of alpha, beta, or gamma radiation, including radiotherapy apparatus.
ISSUE:
Whether the AccuForm cushions are classified under 9022.90.9500, HTSUS as parts and accessories of apparatus based on the use of alpha, beta, or gamma radiation or parts of other equipment, or under 9404.90.2000, HTSUS, as other cushions.
LAW AND ANALYSIS:
Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification 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 HTSUS subheadings under consideration are as follows:
9022 Apparatus based on the use of X-rays or of alpha, beta, or gamma radiations, whether or not for medical, surgical, dental or veterinary uses, including radiography or radiotherapy apparatus, X-ray tubes and other X-ray generators, high tension generators, control panels and desks, screens, examination or treatment tables, chairs and the like; parts and accessories thereof.
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9404 Mattress supports; articles of bedding and similar furnishing (for example, mattresses, quilts, eiderdowns, cushions, pouffes and pillows) fitted with springs or stuffed or internally fitted with any material or of cellular rubber or plastics, whether or not covered:
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Additional U.S. Rule of Interpretation 1(c) states that “a provision for parts of an article covers products solely or principally used as a part of such articles but a provision for ‘parts’ or ‘parts and accessories’ shall not prevail over a specific provision for such part or accessory.” Therefore, before considering your claim that the AccuForm cushions should be classified as a part or accessory of apparatus based on the use of gamma radiation, we must first determine whether it is prima facie classifiable as a good of heading 9404, HTSUS.
Heading 9404, HTSUS, an eo nomine provision, provides for “mattress supports; articles of bedding and similar furnishing (for example, mattresses, quilts, eiderdowns, cushions, pouffes and pillows) fitted with springs or stuffed or internally fitted with any material or of cellular rubber or plastics, whether or not covered.” Eo nomine provisions are those that describe articles by specific names and not by use. Absent limiting language or contrary legislative intent, eo nomine provisions cover all forms of the named article. Nidec Corporation v. United States, 68 F.3d 1333, 1336 (Fed. Cir. 1995). See Lon-Ron Mft. Co. v. United States, 334 F.3d 1304, 1309 (Fed. Cir. 2003). Further to the issue of eo nomine classification, it is well-established legal precedent that “[W]here an article is in character or function something other than as described by a specific statutory provision – either more limited or more diversified – and the difference is significant, it cannot find classification within such provision. It is said to be more than the article described in the statute.” Robert Bosch Corp. v. United States, 63 Cust. Ct. 96 (Cust. Ct. 2d Div. 1969), citing Cragston Corporation v. United States, 51 CCPA 27 (1963); United States v. The A.W. Fenton Company, Inc., 49 CCPA 45 (1962).
The term, “cushion” is not defined in the HTSUS or the ENs, so we look to its common and commercial meaning. See Nippon Kogasku (USA) Inc. v. United States, 69 C.C.P.A. 89, 92-93 (1982); C.J. Towers & Sons v. United States, 69 C.C.P.A. 128, 133-134 (1982). The Oxford English Dictionary defines a cushion as “a case of cloth, silk, etc. stuffed with some soft elastic material, used to give support or ease to the body in sitting, reclining, or kneeling.” As imported, the AccuForm cushions fit this definition. Furthermore, the courts have explicitly rejected the notion that heading 9404, HTSUS is limited to articles that are primarily associated with sleeping or napping. Bauerhin, 110 F.3d at 776-778. Therefore, we conclude that the instant AccuForm cushions are classified as cushions under heading 9404, HTSUS.
In your ruling request, you assert that the AccuForm cushions are parts or accessories of apparatus based on the use of gamma radiation. We disagree. The term “part” is not defined in the HTSUS. In the absence of a statutory definition, the courts have fashioned two distinct but reconcilable tests for determining whether a particular item qualifies as a part for tariff classification purposes. See Bauerhin Technologies Limited Partnership, & John V. Carr & Son, Inc. v. United States, 110 F.3d 774 (Fed. Cir. 1997). Under the first test, articulated in United States v. Willoughby Camera Stores, 21 C.C.P.A. 322 (1933), an imported item qualifies as a part only if can be described as an “integral, constituent, or component part, without which the article to which it is to be joined, could not function as such article.” Bauerhin, 110 F.3d at 779. Pursuant to the second test, set forth in United States v. Pompeo, 43 C.C.P.A. 9 (1955), a good is a “part” if it is “dedicated solely for use” with a particular article and, “when applied to that use…meets the Willoughby test.” Bauerhin, 110 F.3d at 779 (citing Pompeo, 43 C.C.P.A. at 14); Ludvig Svensson, Inc. v. United States, 63 F. Supp. 2d 1171, 1178 (Ct. Int'l Trade 1999) (holding that a purported part must satisfy both the Willoughby and Pompeo tests). An item is not a part if it is “a separate and distinct commercial entity.” Bauerhin, 110 F.3d at.779.
The term “accessory” is not defined in the HTSUS or in the Harmonized Commodity Description and Coding Explanatory Notes (ENs). However, this office has previously stated that the term “accessory” is generally understood to mean an article which is not necessary to enable the goods with which they are intended to function. They are of secondary importance, but must, however, contribute to the effectiveness of the principal article (e.g., facilitate the use or handling of the particular article, widen the range of its uses, or improve its operation). See Headquarters Ruling Letter (HQ) 958710 (Apr 8, 1996); HQ 950166 (Nov. 8, 1991). We also employ the common and commercial meanings of the term “accessory,” as the courts did in Rollerblade v. United States, wherein the Court of International Trade derived from various dictionaries that an accessory must relate directly to the thing accessorized. See Rollerblade, Inc. v. United States, 116 F.Supp. 2d 1247 (Ct. Int'l Trade 2000), aff’d, 282 F.3d 1349 (Fed. Cir. 2002) (holding that inline roller skating protective gear is not an accessory because the protective gear does not directly act on or contact the roller skates in any way); see also HQ 966216 (May 27, 2003), HQ H061738 (May 5, 2010).
It is well-settled that the classification of imported articles “must be ascertained by an examination of the imported article itself, in the condition in which it is imported. Ford Motor Co. v. United States, 254 F. Supp. 3d 1297, 1317 (Ct. Int’l Trade 2017) (citing Worthington v. Robbins, 139 U.S. 337, 341 (1891)). In this case, the cushions as imported are not a part of apparatus based on the use of gamma radiation or any other equipment listed in heading 9022, HTSUS. The cushions do not have any mechanism by which they can be joined to apparatus based on the use of gamma radiation, and are not an integral, constituent, or component part of such apparatus. Apparatus based on the use of gamma radiation can function properly without the presence of a cushion. Similarly, although the cushions are used to support and/or immobilize the heads of patients laying on treatment tables, the cushions cannot be joined to a table and are not an integral, constituent, or component part of any table. Treatment tables can properly perform their function as tables without the presence of the subject cushions.
The AccuForm cushions as imported are not an accessory to any of the equipment listed in heading 9022, HTSUS. In their imported condition, they cannot be used in a gamma radiation setting because they must first be sprayed with water in order to mold to a patient’s head and neck. Therefore, while they can aid or assist in radiotherapy or gamma radiation imaging by molding to a patient’s neck or head, the cushions as imported are not able to perform this function. Furthermore, the cushions do not have a direct relationship to apparatus based on the use of gamma radiation and do not affect the performance of the radiotherapy apparatus or enhance its function, so they cannot be said to accessorize apparatus based on the use of gamma radiation. While the cushions could arguably contribute to the overall effectiveness of gamma radiotherapy or imaging by supporting or immobilizing the patient while the patient is on a treatment table, they do not directly act on the table in a manner that affects its performance or enhances it function. Therefore, the AccuForm cushions cannot be classified as an accessory to radiotherapy or imaging treatment tables.
Based on the foregoing, we conclude that the AccuForm cushions are classified in subheading 9404.90.20, HTSUS as other cushions.
HOLDING:
By application of GRI 1, the subject merchandise is classified in heading 9404, HTSUS. By application of GRI 6, it is specifically classified under subheading 9404.90.20 HTSUS which provides for “Mattress supports; articles of bedding and similar furnishing (for example, mattresses, quilts, eiderdowns, cushions, pouffes and pillows) fitted with springs or stuffed or internally fitted with any material or of cellular rubber or plastics, whether or not covered: Other: Pillows, cushions and similar furnishings: Other.” The column one, general rate of duty is 6% ad valorem.
Duty rates are provided for your convenience and 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/tata/hts/.
A copy of this ruling letter should be attached to the entry documents filed at the time the goods are entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the CBP officer handling the transaction.
Sincerely,
Gregory Connor, Chief
Electronics, Machinery, Automotive, and
International Nomenclature Branch