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HQ W968399




May 8, 2007

CLA-2: RR:CTF:TCM W968399 KSH

CATEGORY: CLASSIFICATION

TARIFF NO.: 3926.90.3500

Port Director
U.S. Customs and Border Protection
477 Michigan Ave
Room 210
Detroit, MI 48226

RE: Application for Further Review of Protest 3801-04-100471

Dear Port Director:

This is in reply to your correspondence forwarding Application for Further Review of Protest (AFR) 3801-04-100471, filed by Fedex Trade Networks Inc., on behalf of its client Calston Industries Inc.

The protest is against Customs and Border Protection’s (CBP) classification of one entry of merchandise identified as “Sensua™ the Passion Pearl Thong™” in heading 6108 of the Harmonized Tariff Schedule of the United States (HTSUS), which provides for “Women's or girls' slips, petticoats, briefs, panties, nightdresses, pajamas, negligees, bathrobes, dressing gowns and similar articles, knitted or crocheted.”

On February 11, 2004, protestant entered the merchandise subject to this protest free of duty in subheading 9505.90.6000, which provides for “Festive, carnival or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof: Other: Other.” On October 5, 2004, protestant changed its classification claim to heading HTSUS, 9019, 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.” On July 12, 2004, a notice of rate advance was issued reclassifying the merchandise in heading 6108, HTSUS. The merchandise was liquidated under heading 6108, HTSUS, on August 6, 2004.

Protestant filed a protest with an application for further review on November 3, 2004, challenging the classification of the merchandise in heading 6108, HTSUS and denying liquidation of the merchandise in heading 9019, HTSUS. Alternatively, protestant argues that the merchandise should be classified in heading 3926, HTSUS, as an other article of plastics. Protestant’s AFR request was approved on September 5, 2006. The protest was timely filed pursuant to 19 U.S.C. 1514 (c)(3) and 19 C.F.R. 174.12 (e)(1).

In support of protestant’s application for further review, protestant correctly notes that the application for further review involves questions of law or fact which have not been ruled upon by the Commissioner of Customs or his designee or by the Customs courts. Further review is warranted pursuant to 19 CFR §§174.24(b) and 174.25.

FACTS:

The merchandise at issue is identified on the submitted sample packaging as “Sensua™ the Passion Pearl Thong™.” The article consists of a front and back man-made lace waist panel with a ten inch string of imitation pearl beads extending through the crotch area.

ISSUE:

Whether the Sensua Passion Pearl Thong is classified in heading 9019, HTSUS, as a massage apparatus; heading 6108, HTSUS, as briefs or panties; or heading 3926, HTSUS, as an other article of plastic.

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 of the Harmonized System at the international level. While neither legally binding nor dispositive, the EN provide a commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the headings. It is Customs and Border Protections’ (CBP) practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUSA. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

Protestant argues that the merchandise lacks a gusset in the crotch area, leg openings and does not provide sufficient coverage of the lower torso area to be considered a brief or panty. Rather protestant argues that marketing information, the design, construction and function of the article are indicative of its use as a massage apparatus. Alternately, protestant argues that the merchandise should be classified as an other article of plastic in heading 3926, HTSUS.

Heading 9019, HTSUS, 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.

The EN to heading 90.19, HTSUS, states in relevant part:

(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 poweroperated, or may be of an electromechanical type with a motor built in to the working unit (vibratorymassaging 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.).

The EN indicates that a massage apparatus is one that provides massaging by friction, vibration, etc. Medical dictionaries provide similar definitions. The common and commercial meaning of terms may be determined by consulting dictionaries, lexicons, scientific authorities and other reliable sources. C.J. Tower & Sons v. United States, 69 CCPA 128, 673 F.2d 1268 (1982). The Dorland’s Illustrated Medical Dictionary (28th ed.), at page 991992, states that the term “massage” is the systematic therapeutic friction, stroking, and kneading of the body. Citing The American Heritage Dictionary, New College Edition. The Court of International Trade (CIT) found that the term “therapeutic” means “having healing or curative powers.” See Richards Medical Co. v. United States, 13 CIT 519, 521, 720 F. Supp. 998 (1989), aff’d, 910 F.2d 828 (Fed. Cir. 1990). The Court further determined that it is necessary to establish a healing and curative purpose of a particular medical procedure in order for an article to qualify as therapeutic. See Richards Medical Co. v. United States, 13 CIT at 521. Based on the foregoing authorities, it is CBP’s view that the massage apparatus of heading 9019, HTSUS, must provide a therapeutic benefit. See HQ 965996, dated November 25, 2002.

The Sensua Passion Pearl Thong does not provide a therapeutic benefit. Rather, it is designed to increase sexual satisfaction. Indeed the packaging material indicates that the Thong is “sold as novelty only.” There is no indication it is designed or intended to be used as a massage apparatus. Thus, it cannot be classified in heading 9019, HTSUS.

Heading 6108 provides for, among other goods, women’s or girls’ briefs or panties. Although the Sensua Passion Pearl Thong resembles a form of panties or underwear known as a thong, it does not feature a gusset in the crotch as is traditionally seen in such garments. What normally constitutes underwear or panties is described in CBP’s Informed Compliance Publication (ICP), dated July 2006, entitled "What Every Member of the Trade Community Should Know About: Apparel Terminology under the HTSUS". It states the following:

Underwear (6108, 6109) - is a term referring to garments which are ordinarily worn under other garments and are not exposed to view when the wearer is conventionally dressed for appearance in public, indoors or out-of-doors. Whether or not a garment is worn next to the body of the wearer is not a determinant; babies’ diapers, for example, are so worn, as are bathing suits. Neither of these garments are customarily worn under other garments, and they are not underwear. This term excludes body-supporting garments, even though they may have the characteristics indicated above for underwear.

Panties (6108, 6208) - are women’s and girl’s short underpants having no leg portion, and fitted snugly at the waist or hips. The term also includes bikini, hipster and thong style underwear.

In Arnold v. United States, 147 U.S. 494, 496 (1892), the Supreme Court defined the term "wearing apparel” as "not an uncommon one in statutes, and . . . used in an inclusive sense as embracing all articles which are ordinarily worn -- dress in general." In Antonia Pompeo v. United States, 40 Cust. Ct. 362, 365, C.D. 2006 (1958), it was held that the term wearing apparel includes articles worn by human beings for reasons of decency, comfort or adornment, but does not include articles worn as a protection against the hazards of a game, sport or occupation. In Jack Bryan, Inc. v. United States, 72 Cust. Ct. 197, 204, C.D. 4541 (1974) the Court stated that the term wearing apparel is generic or descriptive and that under prior tariff acts it was held to mean all articles of wearing apparel worn by human beings for reasons of decency, comfort and adornment.

The Sensua Passion Pearl Thong is not sold or worn as underwear or panties. Underwear, panties and wearing apparel, in general, are worn for decency, hygiene or comfort. The Sensua Passion Pearl Thong is worn for a different purpose than wearing apparel. As such it cannot be classified in heading 6108, HTSUS.

The Sensua Passion Pearl Thong is composed of a man-made lace waist panel and plastic pearl beads. As such, it is a composite good described by two headings (heading 3926, HTSUS, other articles of plastics and heading 6307, HTSUS, other made up articles of textiles) and cannot be classified in accordance with GRI 1. Since classification of the submitted merchandise under a single heading cannot be determined by applying GRI 1, we must apply the other GRI.  GRI 2(b) directs that goods consisting of more than one material or substance are to be classified according to the principles of GRl 3. GRI 3(b) provides that composite goods consisting of different materials or made up of different components, shall be classified as if they consisted of the material or component which gives them their essential character.

EN VIII to GRI 3(b), states that the factors will vary as between different kinds of goods to determine the essential character of an article. 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.

It is our determination that the plastic pearl beads impart the essential character to the merchandise as it is the plastic pearl beads which provide the intended sexual stimulation of the merchandise. Accordingly, the Sensua Passion Pearl Thong is classified in heading 3926, HTSUS.

HOLDING:

Protest number 3801-04-100471 is allowed. The Sensua Passion Peal Thong is classified in heading 3926, HTSUS. It is provided for in subheading 3926.90.3500, HTSUS, which provides for “Other articles of plastics and articles of other materials of headings 3901 to 3914: Other: Beads, bugles and spangles, not strung (except temporarily) and not set; articles thereof, not elsewhere specified or included: Other.” The column one general rate of duty at the time of entry was 6.5% ad valorem.

In accordance with the Protest/Petition Processing Handbook, (CIS HB, January 2002, pp 18 and 21), you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry 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 Home Page
on the World Wide Web 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

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