Internal Advice; Classification of the StressVest™

HQ H169836 July 25, 2013 CLA-2 RR:CTF:TCM H169836 JPJ CATEGORY: Classification TARIFF NO.: 8543.70.96 Port Director Bureau of Customs and Border Protection 112 West Stutsman Street Pembina, ND 58271 ATTN: Import Specialist Team 382 RE: Internal Advice; Classification of the StressVest™ Dear Port Director: This is in response to your memorandum dated April 26, 2011, forwarding the Port of Pembina’s request for internal advice. The internal advice request concerns the classification under the Harmonized Tariff Schedule of the United States (HTSUS) of the StressVest™. The merchandise is imported by Setcan Corporation/Shocknife Inc/StressVest Inc of Winnipeg, Manitoba, Canada (“Setcan”). The merchandise is currently being imported at the Port of Pembina. Product samples were not provided. FACTS: According to the website www.stressvest.com, the StressVest™ is described in Patent #7,872,849, January 18, 2011, as part of a “Laser Engagement Stun System” (“LESS”) designed for training exercises in force-on-force or one-on-one training. The LESS is used by the military, SWAT teams, and special warfare-special operations teams for force on force tactical training purposes. The StressVest™ consists of a vest shell, a controller, and a shocker/vibrator. The visible laser light device that is mounted to a weapon is not imported with the StressVest™. The laser light device is sold and imported separately. The vest shell is an apparatus mounted on load bearing suspenders with a waist belt that is worn by a user. It is powered by a rechargeable 9 volt battery. It incorporates two or more large thin film flexible amorphous solar cells that act as laser light sensors/detectors. The solar cells are protected by a polymer cover and military grade mesh. When the solar cells are struck, or receive the incoming laser pulse from a laser light device that has been mounted on a weapon, the following occurs. The solar cells receive the pulsed and coded red laser light from the laser light device and generate a coded signal in response. An electronic circuit board, also known as the controller, is connected to the solar cells. The controller detects the coded signals from the solar cells, and is programmed to discriminate between a coded pulse laser light from the laser device and ambient light sources that may also be acting upon the solar cells. When the incoming coded pulse laser light is received, the controller can trigger RF (radio frequency) signals, an electrical stun, a vibrator, a strobe light, a sonic alert, etc. The controller can transmit radio frequency signals to a command center or other remote location. The radio frequency signals identify the uniquely coded pulse lasers emitted from the specific laser device used. The controller can convert the coded signals from the solar cells into a high voltage stun (to simulate a bullet wound) delivered through the electrical contacts (via hard wires) to the user. The controller also incorporates a timer which controls the duration of the high voltage stun. The controller can also be programmed to activate the shocker/vibrator instead of delivering a high voltage stun to a user through the electrical contacts. The controller can also trigger visual (strobe light) and audible (sonic alert) indicators in response to a coded signal. The software based controller is the “brains” of the StressVest™. It allows for various modes of operation to enhance student performance. The digital display allows instructors to easily set participant modes, including “Stress Exposure” (the level of shock can be set for each individual student), “Move to Cover” (each successive hit will result in an increase in pain penalty forcing the student to move during fire fight), “Injured Officer” (after the student is hit, he will continue to receive a random pain penalty for the rest of the scenario teaching students the proper mindset for winning encounters), and “Role Player” (delivers a vibration instead of a pain penalty) modes. After a scenario, an instructor can also read the number of successful hits to specific panels of the StressVest™. All controls are clear and accessible, allowing instructors to quickly set the StressVest™ to a desired setting. For example, the shock adjustment dial allows the pain penalty to be quickly adjusted for the skill level of the student. The shock/vibrate switch also includes a warning light that illuminates when the StressVest™ is set to stun. The shocker/vibrator is carried on the vest shell, and the controller may be programmed to activate the shocker/vibrator instead of delivering a high voltage stun to the electrical contacts. Like a stun from the electrical contacts on the StressVest™, the shocker/vibrator alerts the user that he has been shot.  The StressVest™ is illustrated in the pictures below.

The importer is the sole source provider and patent holder of this product and it is sold exclusively to law enforcement, military, corrections and security agencies. ISSUE: Whether the StressVest™ is classified in heading 9506, HTSUS, as articles and equipment for general physical exercise, gymnastics, athletics, other sports (including table-tennis) or outdoor games, or in heading 8543, HTSUS, as an electrical machine and apparatus, having individual functions, not specified or included elsewhere in Chapter 85. LAW AND ANALYSIS: Classification of merchandise under the Harmonized Tariff Schedule of the United States (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 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’s may then be applied. The HTSUS provisions under consideration are as follows: 8543 Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter; parts thereof: 9506 Articles and equipment for general physical exercise, gymnastics, athletics, other sports (including table-tennis) or outdoor games, not specified or included elsewhere in this Chapter; swimming pools and paddling pools. Note 5 to Section XVI provides as follows: For the purposes of these notes, the expression “machine” means any machine, machinery, plant, equipment, apparatus or appliance cited in the headings of chapter 84 or 85. The Harmonized Commodity Description and Coding System Explanatory Notes ("EN’s") constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the EN’s provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989). EN 85.43 states, in pertinent part, that: This heading covers all electrical appliances and apparatus, not falling in any other heading of this Chapter, nor covered more specifically by a heading of any other Chapter of the Nomenclature, nor excluded by the operation of a Legal Note to Section XVI or to this Chapter. (emphasis in original) Petitioner proposes classification under subheading 9506.99, HTSUS, at GRI 1. The text of heading 9506, HTSUS, provides for: “Articles and equipment for general physical exercise, gymnastics, athletics, other sports (including table-tennis) or outdoor games, not specified or included elsewhere in this Chapter; swimming pools and paddling pools.” The heading text provides the context for which the articles and equipment of heading 9506, HTSUS, are to be used, that is, for general physical exercise, gymnastics, athletics, other sports (including table-tennis) or outdoor games. From the product literature submitted and the importer’s website at www.stressvest.com, it is apparent that the StressVest™ is not used for general physical exercise, gymnastics, athletics, other sports, or outdoor games. It is used for force on force training as a tactical training system by the military, SWAT teams, and special warfare-special operations teams. The record indicates that the StressVest™ involves sophisticated instrumentation systems with data devices that allow trainers to analyze user performance for training purposes and reviews. In addition, the website states that the StressVest™ is used by the U.S. Department of Homeland Security, the City of New York Police Department, the Vancouver Police Department, the FBI Academy, the U.S. Air Force Space Command, Environment Canada Enforcement, the U.S. Navy Military Police, the San Bernardino County Sheriff’s Department, and the Canadian Forces. Therefore, the StressVest™ is not an article and/or equipment “for general physical exercise, gymnastics, athletics, other sports (including table-tennis) or outdoor games”, and is not classified in heading 9506, HTSUS. Heading 8543, provides, in pertinent part, for “Electrical machines and apparatus, having individual functions, not specified or included elsewhere in [chapter 85].” The electrical appliances of Heading 8543, HTSUS, must have individual functions. The introductory provision to the EN to heading 84.79, which describes the meaning of the term “individual functions”, applies, mutatis mutandis, to the appliance and apparatus covered by heading 85.43. It states, in relevant part: For this purpose the following are to be regarded as having “individual functions”:   Mechanical devices, with or without motors or other driving force, whose function can be performed distinctly from and independently of any other machine or appliance. Example : Air humidification and dehumidification are individual functions because they can be performed by appliances operating independently of any other machine or appliance. A separately presented air dehumidifier, even if designed to be mounted on an ozone generator falls, therefore, to be classified in this heading as having an individual function. Mechanical devices which cannot perform their function unless they are mounted on another machine or appliance, or are incorporated in a more complex entity, provided that this function:  is distinct from that which is performed by the machine or appliance whereon they are to be mounted, or by the entity wherein they are to be incorporated, and does not play an integral and inseparable part in the operation of such machine, appliance or entity. The StressVest™ is described by heading 8543, HTSUS, because it is an electrical machine or apparatus having an individual function. The StressVest™ is an electrical apparatus whose function is to stun or shock a user to simulate being hit by a bullet. With respect to item (A) from EN 84.79, the StressVest™ can produce a stun or an electrical shock to a user distinctly from and independently of any other machine or appliance. The StressVest™ also satisfies item (B) of EN 84.79 in that it can stun or shock a user independent of another machine or appliance even when used in conjunction with the laser light device. Finally, the StressVest™ is not specified or included elsewhere in Chapter 85, nor more specifically in any other Chapter of the Nomenclature. HOLDING: Pursuant to GRI 1, the StressVest™ is classified in heading 8543, HTSUS. It is specifically provided for in subheading 8543.70.96, as: " Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter; parts thereof: Other machines and apparatus: Other: Other: Other.” Sixty days from the date of the decision, the Office International Trade, Regulations and Rulings, will make this 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 & Trade Facilitation Division