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HQ 966521




September 10, 2003

CLA-2 RR:CR:TE 966506 KSH

CATEGORY: CLASSIFICATION

TARIFF NO.: 6110.20.2030

Kayo Ikeda
GSI Exim America, Inc.
461 Fifth Avenue
New York, NY 10017

RE: Request for reconsideration of NY J82595, dated May 5, 2003, concerning the classification of a “Vest for Snore Prevention”

Dear Ms. Ikeda:

This is in reply to your letter of May 19, 2003, requesting reconsideration of New York Ruling Letter (NY) J82595, dated May 5, 2003. A sample was submitted for our examination. It will be returned per your request.

FACTS:

The sample at issue is a “Vest for Snore Prevention”. It is a 100% cotton knit fabric vest with large armholes and a left over right full front four-snap closure. The interior rear portion of the vest features a zippered pouch which is designed to fit an inflatable article measuring approximately 6 ½ x 23 inches. You state that the vest and inflatable article are worn together to prevent sleep disorders by forcing wearers to sleep on their side. The vest is registered with the United States Food and Drug Administration (FDA) as a snoring preventative medical device.

ISSUE:

Whether the merchandise at issue is classified as a vest of heading 6110, HTSUS, or as a medical device? 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 GRI may then be applied. The Harmonized Commodity Description and Coding System Explanatory Notes (EN), constitute the official interpretation at the international level. While neither legally binding nor dispositive, the EN provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of the headings.

You have requested classification of the garment within Section XVIII of the HTSUS as a medical device although you have not identified a specific heading for classification of the garment. Section XVIII generally covers optical, photographic, cinematographic, measuring, checking, precision, medical or surgical instruments and apparatus; clocks and watches; musical instruments; parts and accessories thereof. Medical or surgical instruments or apparatus are classifiable in Chapter 90, HTSUS. The general explanatory notes to Chapter 90, Section XVIII, HTSUS, state:

This Chapter covers a wide variety of instruments and apparatus which are, as a rule, characterised by their high finish and high precision. Most of them are used mainly for scientific purposes (laboratory research work, analysis, astronomy, etc.), for specialised technical or industrial purposes (measuring or checking, observation, etc.) or for medical purposes.

The Chapter includes in particular:

(B) Instruments and apparatus designed for certain specifically defined uses (surveying, meteorology, drawing, calculating, etc.).

(C) Instruments and appliances for medical, surgical, dental or veterinary uses, or for related purposes (radiology, mechano-therapy, oxygen therapy, orthopaedy, prosthetics, etc.).

(E) Laboratory instruments and appliances.

We believe that Chapter 90, HTSUS, as evidenced by the exemplars stated above, does not encompass articles such as the submitted sample. A review of the relevant subheadings of Chapter 90, HTSUS, covering medical or surgical instruments or apparatus, which include “Instruments and appliances used in medical, surgical, dental or other veterinary sciences, including scintigraphic apparatus, other electro-medical apparatus and sight-testing instruments; parts and accessories therof”, (subheading 9018), “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”, (subheading 9019), “Other breathing appliances and gas masks, excluding protective masks having neither mechanical parts nor replaceable filters; parts and accessories thereof”, (subheading 9020), and “Orthopedic appliances, including crutches, surgical belts and trusses; splints and other fracture appliances; artificial parts of the body; hearing aids and other appliances which are worn or carried or implanted in the body, to compensate for a defect or disability; parts and accessories thereof”, (subheading 9021), further supports our belief that the submitted sample is not classifiable within Section XVIII, HTSUS, and more specifically Chapter 90, Section XVIII, HTSUS.

Although you have stated that the submitted sample is registered with the FDA as a snoring preventative medical device, we note that CBP need not consider other agency’s, statutes, regulations, and administrative interpretations in defining tariff terms. Sabritas S.A. de C.V. v. United States, 998 F. Supp. 1123 (CIT 1998), HQ 963835, dated October 17, 2000, HQ 957550, dated May 23, 1995 and HQ 952995, dated March 10, 1993.

The submitted sample consists of two materials: the textile materials that make up the vest and the inflatable article which fits into the zippered pouch inside the vest. Under GRI 2(b), goods consisting of more than one material or substance are classified according to the principles of GRI 3. Under GRI 3(a), goods are classified in the heading which provides the most specific description. "However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods . . . , those headings are to be regarded as equally specific in relation to those goods . . . ." The competing headings are 6110, HTSUS, which provides for “Sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted”, heading 3926, HTSUS, which provides for “Other articles of plastics and articles or of other materials of headings 3901 to 3914”, or heading 4016, HTSUS, which provides for “Other articles of vulcanized rubber other than hard

You have not identified the material which composes the inflatable article. Accordingly, for purposes of this ruling we will presume that it is an article of plastic of Chapter 39, HTSUS, or an article of rubber of Chapter 40, HTSUS.. Thus, the headings applicable to the two materials which comprise the article at issue must be considered equally specific. Since classification cannot be accomplished by this rule of specificity, consideration must next be given to classification under GRI 3(b). Under GRI 3(b), a good is classified as if it consists entirely of the material from which it derives its essential character:

Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character . . . .

Explanatory Note VIII to GRI 3(b) states that:

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.

In a series of cases, CBP classified gel filled eye masks, used by heating or cooling and placed over the eyes for a relaxing effect, by the material that conformed to the wearer's head and eyes, in those cases, plastic. See HQs 964850, 964851 and 964852 dated April 18, 2001, HQs 963724, 963853 and 964877, dated May 17, 2001, and NYI81850, dated June 14, 2002. In HQ 964851, we stated, in pertinent part, the following:

The composite goods being classified are being imported to be used as eye masks. One of the key elements of an eye mask is its ability to conform to the contours of the wearer's face. In this case, the "indispensable function" (Better Home Plastics, supra) of the article is that it can be comfortably worn on ones (sic) face. The plastic shell which contains the chemicals provides the article with the flexibility necessary to enable the wearer to wrap the article around his or her face while simultaneously enjoying the benefits of the hot or cool contents. Without the plastic, the article could not function as designed.

Similarly, in HQ 966262, dated May 29, 2003, CBP classified a heated head therapy wrap, which contained plastic gel packs which could be heated and placed inside a pocket of a terry head cover, according to the portion of the wrap which comprised the terry head cover. We reasoned that “[s]ince the gel packs are usable only as inserts to the hood, the merchandise is unusable for its purpose except for the design of the fabric shell, which conforms to the contours of the wearer’s head.

As in the eye mask cases and the heated head therapy wrap, the essential character of the article is imparted by the portion of the article that maintains the recognizable shape that makes it usable for its intended purpose, i.e, to keep the sleeper in such a position that they will not snore. The article is unusable for its intended purpose except for the vest which holds the inflatable article in a place conducive to preventing snoring. Without the vest, the inflatable article could not be secured in the appropriate position. Moreover, the bulk of the article is comprised of the textile vest. Accordingly, the “Vest for Snore Prevention” is classified as a vest in subheading 6110.20.2030, HTSUS.

HOLDING:

In accordance with the above, NY J82595 is affirmed.

The “Vest for Snore Prevention” is classified in subheading 6110.20.2030, HTSUS, which provides for “Sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted: Of cotton: Other, Other: Vests, other than sweater vests: Men’s or boys’.” The applicable duty rate is 16.9% ad valorem. The designated textile category code is 359.

The designated textile and apparel category may be subdivided into parts. If so, the visa and quota requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bilateral agreements which are subject to frequent renegotiations and changes, to obtain the most current information available we suggest you check, close to the time of shipment, the Textile Status Report for Absolute Quotas, available on the CBP website at www. cbp.gov.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, you should contact the local CBP office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

Sincerely

Myles B. Harmon, Director
Commercial Rulings Division

1300 Pennsylvania Avenue, N.W., Washington, D.C. 20229


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