Internal Advice Request 09/035 -- Classification of Pregnancy Simulator Vest with carrying bag; GRI 3(b) Set.

HQ H221415 January 30, 2013 CLA-2 OT:RR:CTF:TCM H221415 HvB CATEGORY: Classification TARIFF NO.: 9023.00.00 Port Director U.S. Customs and Border Protection Port of Chicago 9915 Bryn Mawr Rosemount, IL 60018 Attn: Elma Yaccino, Supervisory Import Specialist RE: Internal Advice Request 09/035 -- Classification of Pregnancy Simulator Vest with carrying bag; GRI 3(b) Set. Dear Port Director: This is in response to your request for Internal Advice, dated October 8, 2009, forwarded by counsel on behalf of Realityworks, Inc. (“Realityworks”), regarding the classification of the Pregnancy Profile Vest® under the Harmonized Tariff Schedule of the United States (“HTSUS”). Realityworks included a sample of the Pregnancy Profile Vest, which will be returned to counsel, per its request. FACTS: The subject “Pregnancy Profile Vest” is an outer-garment composed of woven fabric. The front of the chest is completely covered. The back of the vest is secured by three adjustable belts. The padded shoulder straps are also adjustable and are secured by Velcro™. The shoulder straps hold the vest in place order to allow the wearer to sit, stand, lie down, walk, and experience a range of motion as a pregnant woman might. The vest is designed to be worn by adults and teenagers of both sexes. The vest has four design features that are intended to mimic the physical changes to a woman’s body during pregnancy. In the interior front chest area, there are two cut-out compartments for plastic foam breast inserts. The abdomen area of the vest features a zippered space to insert additional weight and there is a separate “adjustable rib constrictor” which contains weighted balls; it is designed to allow the wearer to experience shallow breath and fetal limb pressure. In addition, a refillable water bladder bag with suspended weight demonstrates mild fetal movement and weight gain. When these components are utilized together, the complete vest weight is approximately the same as the average weight a typical woman might gain in the course of her pregnancy. The vest, the foam inserts, the water bladder bag, and the rib constrictor belt are packaged in a rectangular-shaped carrying bag composed of textile material. The carrying bag lacks interior compartments and has a removable plastic piece on the bottom intended to ensure that the bag holds its shape. It has a three sided zipper opening and is designed to transport and store the vest and its components. The carrying bag has “Realityworks Live it Learn it” embroidered on one side and the “Pregnancy Profile®” mark is embroidered on the opposite side. The bag features two carrying handles and a shoulder strap. The garment’s interior label specifies that use of the product should be limited to supervised educational settings and features a series of warnings to the wearer that are similar to those given to pregnant women, e.g., “Do not wear high-heeled slippery, or loose-fitting shoes” and “Do not engage in strenuous activities while wearing Pregnancy Profile®, especially in hot weather as there is a risk of heat stroke.” The vest is primarily marketed to educational institutions, governmental agencies, civic social service organizations for use in prenatal and child development classes. The vest is not available for purchase by individual retail sale. Realityworks states that the Pregnancy Profile Vest qualifies for federal funding to educational institutions through the Carl D. Perkins Vocational and Applied Act (“Perkins Act”). According to the product’s website, www.realityworks.com, the vest is sold as part of a package and a curriculum which covers the various aspects of pregnancy. The website states that the vest is “great for prenatal classes (especially for expectant fathers) and child development education.” The website further notes that the “corresponding curriculum covers the development of the fetus and physical changes every expectant mother experiences. Participants reflect on the financial costs of having a baby, how family and friends might react, and how pregnancy affects the life goals of both the mother and the father.” ISSUE: What is the correct classification of the vest, the foam inserts, the adjustable rib constrictor, the water bladder bag, and the carrying case? LAW AND ANALYSIS: Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). 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 2 through 6 may then be applied in order. The 2013 HTSUS provision under consideration in this case is as follows: 9023 Instruments, apparatus and models, designed for demonstrational purposes (for example, in education or exhibitions), unsuitable for other uses, and parts and accessories thereof… * * * The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While not legally binding or 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 T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989). We note that we are presented with an assortment of items, which includes a garment composed of woven fabric. Since no heading of the HTSUS completely describes the textile vest, the carrying bag, the belt, the bladder bag, and the inserts and the goods are prima facie classifiable in two or more headings, classification must fall to GRI 3. GRI 3 provides, in pertinent part, as follows: When, by application of rule 2(b) [not applicable in this case] or any other reason, goods are, prima facie, classifiable under two or more heading, classification shall be effected as follows: The heading which provides the most specific description shall be preferred to headings providing a more general description […] 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, insofar as this criterion is applicable. … The relevant ENs for GRI 3 provide: (VIII) 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. … (X) For the purposes of this Rule, the term “goods put in sets for retail sale” shall be taken to mean goods which: (a) consist of at least two different articles which are, prima facie, classifiable in different headings. Therefore, for example, six fondue forks cannot be regarded as a set within the meaning of this Rule; (b) consist of products or articles put up together to meet a particular need or carry out a specific activity; and (c) are put up in a manner suitable for sale directly to users without repackaging (e.g., in boxes or cases or on boards). GRI 3(b) provides for the classification of goods put up in retail sets. Applying the definition of the phrase “goods put up as sets for retail sale” provided in EN (X) to GRI 3(b), the subject merchandise meets the first requirement because the product consists of two or more goods, which are prima facie classifiable in two or more headings of the HTSUS. In addition, the subject merchandise meets the second requirement because the vest, the foam inserts, the water bladder bag, the belt, and the carrying bag are put up together to simulate pregnancy. The inserts, the water bladder bag, and the belts are component parts of the vest, which work together to facilitate the demonstration of the physical effects of pregnancy. The carrying bag facilitates the storage and transportation of the vest and its parts and is therefore sufficiently related to the specific activity of simulating pregnancy. Finally the goods are put up in a manner suitable for sale because the goods are packaged in the carrying bag suitable for retail sale. Therefore, the subject vest, foam inserts, rib constrictor belt, water bladder bag and bag qualify as a set for purposes of GRI 3(b). Since the subject merchandise is considered a set, GRI 3(b) requires that classification be based on the product that provides the set with its essential character. As noted above, EN (VIII) to GRI 3(b) provides that when performing an essential character analysis, the factors that should be considered are the bulk, quantity, weight or value, or the role of a constituent material in relation to the use of the goods. There have been several court decisions on "essential character" for purposes of classification under GRI 3(b). See, e.g., Conair Corp. v. United States, 29 C.I.T. 888 (2005); Structural Industries v. United States, 360 F. Supp. 2d 1330, 1337-1338 (Ct. Int’l Trade 2005); and Home Depot USA, Inc. v. United States, 427 F. Supp. 2d 1278, 1295-1356 (Ct. Int’l Trade 2006), aff’d 491 F.3d 1334 (Fed. Cir. 2007). “[E]ssential character is that which is indispensable to the structure, core or condition of the article, i.e., what it is.” Home Depot USA, Inc. v. United States, 427 F. Supp. 2d at 1293 quoting A.N. Deringer, Inc. v. United States, 66 Cust. Ct. 378, 383 (1971). In light of its characteristics and significant design features, the vest clearly imparts the set with its essential character. As noted above it, it has adjustable belts, straps, and zippered pouches by means of which weight or other inserts can be added or removed. These features allow different users to experience the different aspects and stages of pregnancy at different times. With the exception of the carrying bag, the other components of the set lack individual use. Without the vest, the other components of the set cannot be used to demonstrate pregnancy. Although the bag has some bulk, it is considerably less bulky than the vest. In this instance, the carrying bag does not impart the set with its essential character because it is not indispensable to the activity of simulating and demonstrating the pregnancy experience. Finally, the set’s name, the Pregnancy Profile Vest, stems from the vest. We therefore find that the vest provides the set with its essential character. The EN to heading 90.23 provides "[t]his heading covers a wide range of instruments, apparatus and models designed for demonstrational purposes (e.g., in schools, lecture rooms, exhibitions)." The HTSUS does not define the term “demonstrational”. Thus, we will look to the common meaning of the term. When a tariff term is not defined by the HTSUS or the legislative history, its correct meaning is its common, or commercial, meaning. Rocknel Fastener, Inc. v. United States, 267 F.3d 1354, 1356 (Fed. Cir. 2001). "To ascertain the common meaning of a term, a court may consult 'dictionaries, scientific authorities, and other reliable information sources' and 'lexicographic and other materials.'" Ibid. (quoting C.J. Tower & Sons of Buffalo, Inc. v. United States, 673 F.2d 1268, 1271, 69 C.C.P.A. 128 (C.C.P.A. 1982); Simod Am. Corp. v. United States, 872 F.2d 1572, 1576 (Fed. Cir. 1989)). The Oxford English Dictionary, 2nd Ed. (1989), defines the word demonstrate as "[t]o point out, indicate; to exhibit, set forth". See Headquarters Ruling Letter (“HQ”) H050116, dated March 26, 2009. In this case, the subject Pregnancy Profile Vest is an apparatus which is specially designed to demonstrate the physical changes resulting from pregnancy, since it allows the person wearing the vest to experience the physical burdens and changes associated with pregnancy. As denoted by the garment’s label and construction, the vest is unsuitable for other uses. Counsel’s submission documents the educational and demonstrational nature of the product, such as the fact that the subject vest qualifies for federal educational funding and that the vest is designed to be used in an educational setting in conjunction with a curriculum which delves into the various aspects of pregnancy. Accordingly, we find that the vest is classified in heading 9023, HTSUS, as the vest is an instrument or apparatus designed for educational purposes and is unsuitable for other uses. Our conclusion is in accord with HQ 201596, dated May 7, 2012, wherein CBP classified a similar infant doll in heading 9023, HTSUS, HQ H050116, dated March 26, 2009, wherein CBP classified a humanoid robot in heading 9023, HTSUS, and NY N099326, dated January 26, 2007, wherein CBP classified the “NeoNatalie Training Kit” in heading 9023, HTSUS. HOLDING: By application of GRI 3(b), HTSUS, the subject vest with the foam inserts, rib constrictor belt, water bladder bag, and carrying bag are classified in heading 9023, HTSUS, specifically subheading 9023.00.00, HTSUS, which provides for: “Instruments, apparatus and models, designed for demonstrational purposes (for example, in education or exhibitions), unsuitable for other uses, and parts and accessories thereof… …” The column one, general rate of duty is Free. Duty rates are provided for your convenience and 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. You are to mail this decision to the Internal Advice requester no later than 60 days from the date of the decision. At that time, the Office of International Trade, Regulations and Rulings, will make the decision available to CBP personnel and the public on the CBP website located 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