OT:RR:CTF:FTM H308383 PJG
Mr. Robert Lum
Modern Technologies Group, Inc.
#1 MTG Way @ Reeves Station Road
Medford, New Jersey 08055
RE: Revocation of HQ 966911 and NY N051743; Modification of HQ H283893; tariff classification of machine covers
Dear Mr. Lum:
On April 1, 2004, U.S. Customs and Border Protection (“CBP”) issued Headquarters Ruling Letter (“HQ”) 966911 to you. The ruling pertains to the tariff classification under the Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”) of disposable fleece covers for the Danniflex (CPM 460) machine. We have reviewed HQ 966911 and determined it to be in error with respect to the classification of the merchandise. Accordingly, HQ 966911 is revoked.
Furthermore, CBP has reviewed New York Ruling Letter (“NY”) N051743, dated February 20, 2009, and has determined it to be in error as well. Accordingly, NY N051743 is also revoked. Finally, CBP has reviewed HQ H283893, dated November 15, 2019, and has determined it to be inaccurate with respect to the description of the merchandise in HQ 966911.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. § 1625(c)(1)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. No. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed action was published on September 2, 2020, in Volume 54, Number 34, of the Customs Bulletin. No comments were received in response to this notice.
FACTS:
In HQ 966911, CBP described the disposable fleece covers for the Danniflex (CPM 460) machine as follows:
The merchandise at issue is 100 percent knitted polyester polar fleece covers used to cover the frame of a machine called the Danniflex (CPM 460), a mechano-therapy appliance. The machine is used in hospitals and is a passive motion exerciser for simultaneously flexing the hip and knee joints of a human leg. The cover is placed on the hard pieces of the machine that the patient rests on to prevent sores, friction burns, etc. Hook and loop straps secure the pads to the machine. The fleece covers are disposed of after each patient's treatment on the machine. The covers are not an integral or necessary part of the machine without which the machine would not operate.
CBP classified the merchandise in heading 9019, HTSUS, because it determined that the merchandise is an accessory to the Danniflex (CPM 460) machine. Specifically, CBP classified the disposable fleece covers in subheading 9019.10.2010, HTSUSA, 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: Mechano-therapy appliances.”
ISSUE:
What is the proper classification under the HTSUS for the disposable fleece covers for the Danniflex (CPM 460) machine?
LAW AND ANALYSIS:
Classification under the Harmonized Tariff Schedule of the United States (“HTSUS”) is made in accordance with the General Rules of Interpretation (“GRI”). 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 may then be applied.
The 2020 HTSUS provisions under consideration are as follows:
5911 Textile products and articles, for technical uses, specified in note 7 to this chapter:
6307 Other made up articles, including dress patterns:
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:
Note 7 to Section XI, HTSUS, states, in relevant part, as follows:
For the purposes of this section, the expression “made up” means:
* * *
(b) Produced in the finished state, ready for use (or merely needing separation by cutting dividing threads) without sewing or other working (for example, certain dusters, towels, tablecloths, scarf squares, blankets);
Note 7(b) to Chapter 59, HTSUS, provides as follows:
Heading 5911 applies to the following goods, which do not fall in any other heading of section XI:
* * *
(b) Textile articles (other than those of headings 5908 to 5910) of a kind used for technical purposes (for example, textile fabrics and felts, endless or fitted with linking devices, of a kind used in papermaking or similar machines (for example, for pulp or asbestos-cement), gaskets, washers, polishing discs and other machinery parts).
* * *
Note 1 to Chapter 63, HTSUS, provides that “Subchapter 1 applies only to made up
articles, of any textile fabric.”
The Harmonized Commodity Description and Coding System Explanatory Notes
(“ENs”) constitute the “official interpretation of the Harmonized System” at the international level. See 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989). 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 id.
The EN to 59.11(B) provides, in relevant part, as follows:
(B) TEXTILE ARTICLES OF A KIND USED FOR TECHNICAL PURPOSES
All textile articles of a kind used for technical purposes (other than those of headings 59.08 to 59.10) are classified in this heading and not elsewhere in Section XI (see Note 7 (b) to the Chapter); for example :
(1) Any of the fabrics of (A) above which have been made up (cut to shape, assembled by sewing, etc.), for example, straining cloths for oil presses made by assembly of several pieces of fabric; bolting cloth cut to shape and trimmed with tapes or furnished with metal eyelets or cloth mounted on a frame for use in screen printing.
(2) Textile fabrics and felts, endless or fitted with linking devices, of a kind used in paper making or similar machines (for example, for pulp or asbestos cement) (excluding machinery belts of heading 59.10).
(3) Articles formed of linked monofilament yarn spirals and having similar uses to the textile fabrics and felts of a kind used in paper making or similar machines referred to in (2) above.
(4) Gaskets and diaphragms for pumps, motors, etc., and washers (excluding those of heading 84.84).
(5) Discs, sleeves and pads for shoe polishing and other machines.
(6) Textile bags for oil presses.
(7) Cords cut to length, with knots, loops, or metal or glass eyelets, for use on Jacquard or other looms.
(8) Loom pickers.
(9) Bags for vacuum cleaners, filter bags for air filtration plant, oil filters for engines, etc.
The textile articles of this heading may incorporate accessories in other material provided the articles remain essentially articles of textile.
The EN to 63.07 states in pertinent part, the following:
This heading covers made up articles of any textile material which are not included more specifically in other headings of Section XI or elsewhere in the Nomenclature.
It includes, in particular :
* * *
(7) Loose covers for motor-cars, machines, suitcases, tennis rackets, etc.
* * *
The subject merchandise is not classifiable in Chapter 59, HTSUS, specifically, in heading 5911, HTSUS, which provides for “Textile products and articles, for technical uses, specified in note 7 to this chapter,” because the merchandise is not of a kind used for “technical uses” and it is classifiable in another heading of Section XI, HTSUS. See Note 7(b) to Section XI, HTSUS. The term “technical purposes,” which is used in Note 7(b) to Chapter 59, HTSUS, and “technical uses” are not defined by the HTSUS, however, the subject merchandise is not similar to any of the exemplars provided in Note 7(b) to Chapter 59, HTSUS, or the exemplars provided in EN 59.11(B).
In Bauerhin Techs. Ltd. Partnership. v. United States, 110 F.3d 774 (Fed. Cir. 1997), the United States Court of Appeals for the Federal Circuit (“CAFC”) identified two distinct lines of cases defining the word “part.” Consistent with United States v. Willoughby Camera Stores, Inc., 21 C.C.P.A. 322, 324 (1933) (citations omitted), one line of cases holds that a part of an article “is something necessary to the completion of that article. . . . [W]ithout which the article to which it is to be joined, could not function as such article.” The other line of cases evolved from United States v. Pompeo, 43 C.C.P.A. 9, 14 (1955), which held that a device may be a part of an article even though its use is optional, and the article will function without it, if the device is dedicated for use upon the article, and, once installed, the article will not operate without it. The definition of “parts” was also discussed in Rollerblade, Inc. v. United States, 282 F.3d 1349, 1353 (Fed. Cir. 2002), wherein the CAFC defined parts as “an essential element or constituent; integral portion which can be separated, replaced, etc.” Id. at 1353 (citing Webster's New World Dictionary 984 (3d College Ed. 1988) (holding that inline roller skating protective gear is not an accessory because it “does not directly act on” or “contact” the roller skates)). This line of reasoning has been applied in previous CBP rulings. See e.g., HQ H255093 (Jan. 14, 2015); HQ H238494 (June 26, 2014); HQ H027028 (Aug. 19, 2008).
Insofar as the term “accessory” is concerned, the Court of International Trade (“CIT”) has previously referred to the common meaning of the term because the term is not defined by the HTSUS or its legislative history. See Rollerblade, Inc. v. United States, 24 Ct. Int’l Trade 812, 815-819 (2000), aff’d, 282 F.3d 1349 (Fed. Cir. 2002)). We also employ the common and commercial meanings of the term “accessory”, as the CIT did in Rollerblade, Inc., wherein the court derived from various dictionaries “that an accessory must relate directly to the thing accessorized.” See Rollerblade, Inc., 24 Ct. Int’l Trade at 817. In Rollerblade, Inc., the CAFC noted that “an ‘accessory’ must bear a direct relationship to the primary article that it accessorizes.” 282 F.3d at 1352. In support of its finding that the protective gear was not an accessory to roller skates, the CAFC also noted that the “protective gear does not directly affect the skates’ operation.” Id. At 1353.
The subject merchandise in this case is not a “part” under any of the tests provided in the judicial decisions described above. It is not a “part” under the Willoughby test because the disposable fleece cover is not necessary to the completion of the Danniflex (CPM 460) machine and the machine can function without it. It is also not a “part” under the Pompeo test because even after the disposable fleece cover is attached to the machine, the machine can function without the cover. The subject merchandise is not a “part” because it is not essential, constituent or integral to the Danniflex (CPM 460) machine. See Rollerblade, Inc., 282 F.3d at 1353 (the CAFC found that the protective gear was not a part to the roller skates because they did not “attach to or contact” the roller skates, they were “not necessary to make the skates … work”, nor were “they necessary to make the skates … work efficiently or safely.”).
The subject merchandise is also not an “accessory” of the Danniflex (CPM 460) machine. Like the protective gear in Rollerblade, Inc., the disposable fleece covers do not directly affect the machine’s operation nor do they contribute to the machine’s effectiveness. See Rollerblade, Inc., 282 F.3d at 1353; HQ 960950 (Jan. 16, 1998) (stating that “[a]ccessories are of secondary importance,” but must “somehow contribute to the effectiveness of the principal article”). Instead, the instant fleece cover is placed on the hard pieces of the machine that the patient rests on to prevent sores, friction burns, etc.
We note that, unlike the protective gear in Rollerblade, Inc., which was never in contact with roller skates, the subject fleece cover does come in contact with the Danniflex (CPM 460) machine while the machine is in use. However, while the fleece cover comes in contact with the machine while it is in use, it does not have a direct relationship to the operation of the machine. As mentioned above, it is used to prevent sores, friction burns, etc. Accordingly, the subject merchandise is neither a “part” nor an “accessory” under heading 9019, HTSUS.
This is similar to HQ H304940, dated December 10, 2019, wherein CBP considered the classification of two stethoscope covers. In that ruling, CBP considered the CIT decision in Rollerblade, Inc. v. United States, and determined that “[i]n applying the court’s standard to the instant facts, we must examine whether the subject covers directly contribute to the effectiveness of a stethoscope’s function.” CBP determined that the stethoscope covers “do not directly add to or enhance a stethoscope’s function of detecting sounds in the body. Therefore, the subject stethoscope covers do not rise to the level of an accessory of a medical instrument or appliance of heading 9018, HTSUS.” Similarly, in HQ 966911, the disposable fleece covers for the Danniflex (CPM 460) machine do not contribute to the functioning of the mechano-therapy appliance that it covers. In HQ 966911, CBP specifically states that “[t]he covers are not an integral or necessary part of the machine without which the machine would not operate.” Accordingly, the disposable fleece covers are not an accessory to the Danniflex (CPM 460) machine and therefore, are not classifiable in heading 9019, HTSUS.
The subject merchandise is a “made up” article of textile fabric within the meaning of “made up” provided for in Note 7(b) of Section XI, HTSUS, and the requirement of Note 1 to Chapter 63, HTSUS. Note 7(b) to Section XI, HTSUS, states that “made up” articles are “[p]roduced in the finished state, ready for use (or merely needing separation by cutting dividing threads) without sewing or other working (for example, certain dusters, towels, tablecloths, scarf squares, blankets).” The subject merchandise is imported as finished articles that are ready to be used as covers for the machines without sewing or other working, and they are made of open celled polyester-polyurethane foam covered with polyester fabric with loop finish, polyester hook/loop, and elastic. Therefore, the subject merchandise is classified in heading 6307, HTSUS, and specifically under subheading 6307.90.98, HTSUS, which provides for “Other made up articles, including dress patterns: Other: Other: Other.”
HOLDING:
Under the authority of GRIs 1 and 6 the disposable fleece covers for the Danniflex (CPM 460) machine are classified under heading 6307, HTSUS, and specifically in subheading 6307.90.98, HTSUS, which provides for “Other made up articles, including dress patterns: Other: Other: Other.” The 2020 column one, general rate of duty is 7 percent 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/.
EFFECT ON OTHER RULINGS:
HQ 966911, dated April 1, 2004, is REVOKED.
NY N051743, dated February 20, 2009, is REVOKED.
HQ H283893, dated November 15, 2019, is MODIFIED only insofar as to remove the inaccurate description of HQ 966911. Specifically, it is modified to remove the following language “is integral to the purpose and function of the machine as used for exercise. However,” and replace it with the following language “like.”
In accordance with 19 U.S.C. § 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
For Craig T. Clark, Director
Commercial and Trade Facilitation Division