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HQ 966874




May 17, 2004

CLA-2 RR:CR:GC 966874AM

CATEGORY: CLASSIFICATION

TARIFF NO.: 3919.90.50, 3926.90.98, 6117.80.9510, 9817.00.96

Mr. Thomas M. Lennox
Luminaud, Inc.
8688 Tyler Blvd.
Mentor, OH 44060

RE: Revocation of HQ 951654; Romet laryngectomy filter covers, Buchanan laryngectomy protectors, and Stomafoam squares

Dear Mr. Lennox:

This is in reference to Headquarters Ruling Letter (HQ) 951654, dated July 2, 1992, regarding the classification of Romet laryngectomy filter covers, Buchanan laryngectomy protectors, and Stomafoam squares, pursuant to the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). We have reviewed the ruling and find it to be incorrect. This ruling sets forth the correct classifications.

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. 103-82, 107 Stat. 2057, 2186), notice of the proposed revocation of HQ 951654 was published on April 7, 2004, in the Customs Bulletin, Volume 38, Number 15. No comments were received in response to this notice.

FACTS:

Stoma covers are used by people who have had a laryngectomy, the surgical removal of the larynx. In this procedure, the trachea is rerouted to an opening in the neck called a stoma. Hence, inhaled air bypasses the nasopharynx. Stoma covers serve to replace the lost functions of the nasopharynx, namely to filter, warm and moisturize inhaled air and to absorb secretions expelled from the stoma.

Romet laryngectomy filter covers are dickey-type cotton knit covers with velcro fastenings measuring about 8.5 by 11 inches. In advertisements for this article found on the Internet, the colors and styles of the covers are emphasized with slogans such as “let neckbreathers dress in a relaxed and confident manner” (www.luminaud.com/ images/bibs2.jpg). The Romet filter covers do not actually include a filtering material. One website states “Filters can be worn underneath” (www.eaglemedicalsupply.com/ ProductDetails). The cover can be washed and used indefinitely.

The Buchanan laryngectomy protector is made of white foam enclosed in a cotton mesh covering that ties around the neck. It can be worn under clothing or at home. It is typically worn for one day and then washed. After 10 washings it should be discarded. It comes in two sizes, 8.5 x 7.25 inches and 6.5x 4.25 inches.

Stomafoam squares are 2 x 2.5 inch pieces of foam either 1/8 or 3/16 inches thick. They are held in place over the stoma by a strip of adhesive. They are used at home or under regular clothing or neckwear and discarded after each use. They are sold in bags of 30 individually wrapped squares.

In HQ 951654, we ruled that all three laryngectomy covers were classified in subheading 9021.90.80, HTSUS, the provision for "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: Other: Other." We also ruled that the merchandise could be entered duty-free under subheading 9817.00.96, HTSUS, the provision for "Articles specially designed or adapted for the use or benefit of the blind or other physically or mentally handicapped persons; parts and accessories (except parts and accessories of braces and artificial limb prosthetics) that are specially designed or adapted for use in the foregoing articles: Other," because the merchandise is specially designed for use by physically handicapped persons.

ISSUE:

Whether the three laryngectomy covers are classified as appliances worn on the body to compensate for a defect of disability, as filters, or as to their material make-up.

LAW AND ANALYSIS:

Merchandise imported into the U.S. is classified under the HTSUSA. 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 that requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUSA and are to be considered statutory provisions of law.

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 and, unless otherwise required, according to the remaining GRIs taken in order. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and mutatis mutandis, to the GRIs.

In interpreting the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 8980, 54 Fed. Reg. 35127 (August 23, 1989).

The HTSUS provisions under consideration are:

Self-adhesive plates, sheets, film, foil, tape, strip and other flat shapes, of plastics, whether or not in rolls:

Other:

Other

3926 Other articles of plastics and articles of other materials of headings 3901 to 3914:

.90 Other:

Other

6117 Other made up clothing accessories, knitted or crocheted; knitted or crocheted parts of garments or of clothing accessories:

Other accessories:

Other:

6117.80.95 Other:

6117.80.9510 Of cotton (359)

Centrifuges, including centrifugal dryers; filtering or purifying machinery and apparatus, for liquids or gases; parts thereof:

Filtering or purifying machinery and apparatus for gases:

8421.39 Other:

8421.39.80 Other

9021 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:

9021.90 Other:

9021.90.80 Other

We have already recognized that the instant merchandise is classified in subheading 9817.00.96, HTSUS, which provides for duty-free treatment for articles specially designed or adapted for the use or benefit of the blind or other physically or mentally handicapped persons and parts and accessories of such articles. However, the heading text of 9817 and 9021, HTSUS, is not synonymous. Although the “defect or disability” language of heading 9021, HTSUS, is very close to the terms “physically . . . handicapped” in heading 9817, HTSUS, (and we need not attempt to ascertain any differences here), the “articles specially designed or adapted” language of heading 9817 could refer to a much larger set of goods than the “high precision” “appliances” of heading 9021.

In describing the general content and arrangement of Chapter 90, the EN states in pertinent part that: "[T]his Chapter covers a wide variety of instruments and apparatus which are, as a rule, characterised by their high finish and high precision." The EN also lists the following exceptions to the general rule that the instruments and apparatus of this Chapter are high precision types: "ordinary goggles (heading 90.04), simple magnifying glasses and non-magnifying periscopes (heading 90.13), divided scales and school rules (heading 90.17) and fancy hygrometers, irrespective of their accuracy (heading 90.25)." Stoma supplies in general are not listed as one of the exceptions to the high precision rule. Stoma supplies are either disposable plastic articles packaged in boxes of 30, worn for a day, washed a few times, and discarded, or textile articles, chosen for their color and style, and worn and washed indefinitely as with other neckware. Therefore, we do not believe they are characterized by high finish and high precision.

Furthermore, the ENs to heading 9021, HTSUSA, state, in pertinent part, the following:

(IV) HEARING AIDS

These are generally electrical appliances with a circuit containing one or more microphones (with or without amplifier), a receiver and a battery. The receiver may be worn internally or behind the ear, or it may be designed to be held in the hand against the ear.

This group is restricted to appliances for overcoming deafness; it therefore excludes articles such as headphones, amplifiers and the like used in conference rooms or by telephonists to improve the audibility of speech.

(V) OTHER APPLIANCES WHICH ARE WORN OR CARRIED, OR IMPLANTED IN THE BODY, TO COMPENSATE FOR A DEFECT OR DISABILITY

This group includes:

Speech-aids for persons having lost the use of their vocal cords as a result of an injury or a surgical operation. These consist essentially of an electronic impulse generator. When pressed against the neck, for example, they generate vibrations in the cavities of the throat which are modulated by the user to produce audible speech.

(2) Pacemakers for stimulating defective heart muscles. These are roughly the size and weight of a pocket watch and are implanted beneath the skin of the patient’s chest. They incorporate an electric battery and are connected by electrodes to the heart, which they provide with the impulses necessary for its functioning. Other types of pacemakers are used to stimulate other organs (for example, the lungs, the rectum or the bladder).

Electronic aids for the blind. These consist essentially of an ultrasonic transmitter-receiver powered by an electric battery. The frequency variations resulting from the time taken for the ultrasonic beam to travel out to an obstacle and be reflected back enable the user, through an appropriate device (e.g., an internal ear-piece), to detect the obstacle and judge its distance.

(4) Appliances implanted in the body, used to support or replace the chemical function of certain organs (e.g., secretion of insulin).

The stoma filters and filter covers are nothing like either the hearing aids of the heading text or the listed examples in the ENs. First, all of the appliances listed are precision electronic devices that actively compensate for the defect or disability. Second, all of the examples assist or replace the function of a failed organ: they amplify sound when the ears have failed, they stimulate the vocal cords or the heart muscle when the larynx or heart has failed, or they pump insulin when the pancreas has stopped working. The instant goods do not actually do anything to assist or replace the function of an organ after its failure. The trachea still functions as a pathway for inhaled and exhaled air, albeit bypassing the usual route through the nasopharynx. Foam stoma covers simply help filter and humidify the inhaled air and textile stoma covers keep the stoma discreet. Moreover, speech aids for people who have undergone a laryngectomy are specifically mentioned, whereas other accessories for the surgically created stoma are conspicuously absent.

The literature for both the Buchanan laryngectomy protectors and Stomafoam squares uses the word filter to describe their purpose. Heading 8421, HTSUSA, provides for filters for gases. EN 84.21 states, in pertinent part, the following:

(B) Filtering or purifying machinery, etc., for gases.

These gas filters and purifiers are used to separate solid or liquid particles from gases, either to recover products of value (e.g., coal dust, metallic particles, etc., recovered from furnace flue gases), or to eliminate harmful materials (e.g., dust extraction, removal of tar, etc., from gases or smoke fumes, removal of oil from steam engine vapours).

They include:

(1) Filters and purifiers acting solely by mechanical or physical means; these are of two types. In the first type, as in liquid filters, the separating element consists of a porous surface or mass (felt, cloth, metallic sponge, glass wool, etc.). In the second type, separation is achieved by suddenly reducing the speed of the particles drawn along with the gas, so that they can then be collected by gravity, trapped on an oiled surface, etc. Filters of these types often incorporate fans or water sprays.

Filters of the second type include:

(v) Dust extractors, smoke filters, etc., fitted with various types of obstructing elements to reduce the speed of the particles in the gas stream, e.g., baffle lattes, partitions perforated with non-corresponding orifices, circular or spiral circuits fitted with baffles, and cones of superimposed baffle rings. [all emphasis in original.]

When worn over the stoma, the foam acts as a filter and humidifier for inhaled air. However, the examples of filters listed in EN 84.21 are incorporated into a device that moves the liquid or gas to be filtered. There are no examples in the EN that consist simply of the separating element or material as the filter. The Random House Dictionary of the English Language, the Unabridged Edition, (1973), defines apparatus as “1. A group or aggregate of instruments, machinery, tools, materials, etc., having a particular function or intended for a specific use. 2. Any complex instrument or mechanism for a particular purpose. 3. Any system or systematic organization of activities, functions, processes, etc., directed toward a specific goal: the apparatus of government; espionage apparatus. 4. Physiol. A group of structurally different organs working together in the performance of a particular function: the digestive apparatus.” The foam stoma filters are not incorporated into a machine. Nor do they constitute a filtering "apparatus" based on the definition above. Other than the packaging of the foam, there is nothing to distinguish the foam from other foam cut to shape. Both the Buchanan laryngectomy protectors and the Stomafoam squares are simply pieces of foam worn over a stoma secured by textile ties or by adhesive; a dust mask, of sorts, for a stoma rather than for the nose and mouth.

In NY 858666, dated December 18, 1990, and in NY 867238, dated December 2, 1991, a dust mask composed of non-woven textile fabric was classified as an "other made up article" in subheading 6307.90, HTSUS. The instant foam stoma filters, which function exactly like a dust mask, are therefore also classified as articles of their material make-up in chapter 39. Therefore, the Stomafoam squares are classified in subheading 3919.90.50, HTSUS, the provision for "Self-adhesive plates, sheets, film, foil, tape, strip and other flat shapes, of plastics, whether or not in rolls: Other: Other."

The Buchanan laryngectomy protector is a composite good of foam and textile materials. The foam accounts for most of the weight and all of the function of the article. It is therefore classified by GRI 3(b) in subheading 3926.90.98, HTSUS, the provision for "Other articles of plastics and articles of other materials of headings 3901 to 3914: Other: Other."

The Romet laryngectomy filter cover is worn much like a necktie or cravat. It hides the stoma in a stylish way. It is therefore classified in subheading 6117.80.9510, HTSUSA, the provision for “Other made up clothing accessories, knitted or crocheted; knitted or crocheted parts of garments or of clothing accessories: Other accessories: Other: Of cotton.”

HOLDING:

The Romet laryngectomy filter cover is classified in subheading 6117.80.9510, HTSUSA, the provision for “Other made up clothing accessories, knitted or crocheted; knitted or crocheted parts of garments or of clothing accessories: Other accessories: Other: Of cotton,” in quota category 359. The duty rate is 14.6% ad valorem.

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.

The Stomafoam squares are classified in subheading 3919.90.5060, HTSUSA, the provision for "Self-adhesive plates, sheets, film, foil, tape, strip and other flat shapes, of plastics, whether or not in rolls: Other: Other: Other." The rate of duty is 5.8% ad valorem.

The Buchanan laryngectomy protector is classified in 3926.90.9880, HTSUSA, the provision for "Other articles of plastics and articles of other materials of headings 3901 to 3914: Other: Other: Other" The rate of duty is 5.3% ad valorem.

However, duty free status under subheading 9817.00.96, HTSUS, for all three articles, is unaffected.

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 World Wide Web at www.usitc.gov.

EFFECT ON OTHER RULINGS:

HQ 951654, dated July 2, 1992, is revoked.

In accordance with 19 U.S.C. §1625(c)(1), this ruling will become effective 60 days after its publication in the Customs Bulletin.

Sincerely,

Myles B. Harmon, Director

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