H314649

HQ H314649 March 3, 2022 OT:RR:CTF:EMAIN H314649 NVF CATEGORY: Classification TARIFF NO.: 3926.90.99 Brian J. O'Shea, Esq. McKenna & Cuneo 1575 Eye Street, N.W. Washington, D.C. 20005 RE: Modification of HQ 558009; Silicone part Dear Mr. O’Shea: This ruling is in reference to Headquarters Ruling Letter (“HQ”) 558009, dated November 10, 1994, regarding the country of origin marking of an Aerochamber device under the North American Free Trade Agreement ("NAFTA"). In HQ 558009, U.S. Customs and Border Protection (“CBP”) classified the component parts of the Aerochamber under subheading 9019.20, HTSUS which provides for, “Mechano-therapy appliance; massage apparatus; psychological aptitude-testing apparatus; ozone therapy, oxygen therapy, aerosol therapy, artificial respiration or other therapeutic respiration apparatus; parts and accessories thereof: Ozone therapy, oxygen therapy, aerosol therapy, artificial respiration or other therapeutic respiration apparatus; parts and accessories thereof.” We have since reviewed HQ 558009 and determined that the portion of the ruling pertaining to the classification of the silicone valve is in error. Therefore, CBP is modifying HQ 558009 according to the analysis set forth below. Notice of the proposed action was published in the Customs Bulletin, Vol. 56, No. 3, on January 26, 2022. No comments were received in response to that notice. FACTS: In HQ 558009, the Aerochamber is described as: {A}n aerosol therapy device which is marketed under the trademark "Aerochamber. According to your submission, the Aerochamber is an FDA-approved medical device that is used with a metered dose inhaler ("MDI") to deliver aerosol medication. It was designed to simplify delivery of medication to patients suffering from asthma who are unable to properly coordinate an MDI (due to age or ill-health), to reduce undesirable side effects that result from use of a MDI alone in the delivery of medication, such as oral candidiasis, and to enhance the therapeutic value of the medication. The device is described as a temporary holding chamber for MDI-dispersed medication . . . . {T}he basic model ("Aerochamber with FLOWSIGnal") is in the shape of a tube measuring approximately 4 1/2 inches in length and 1 1/2 inches in diameter. At one end of the holding chamber is a plastic mouthpiece containing a one-way silicone inhalation "flapper" valve and exhalation ports. At the other end of the device is a rubber end cap with a port into which a standard MDI may be inserted. Imbedded in the rim of the end cap is what you refer to as a FLOWSIGnal, a plastic whistle-like device, which sounds if the patient fails to inhale at a slow and even pace . . . . {E}xcept for the silicone flapper valve, the Aerochamber is made entirely of plastic. {A} second model Aerochamber, which is referred to as Aerochamber with Mask, is nearly identical to the basic model, but is fitted with a permanently-attached silicone mask. This model is particularly designed for infants and the infirm who may not have the strength or ability to hold the device and coordinate inhalation and delivery of the medication. The Aerochamber with FLOWSIGnal consists of the following six components: mouthpiece cap, mouthpiece, die-cut silicon diaphragm valve, aerochamber body, thermoplastic MDI-end, and polycarbonate reed whistle . . . . The Aerochamber with Mask consists of the following seven components: die-cut silicon diaphragm valve, aerochamber body, thermoplastic MDI-end, polycarbonate reed whistle, silicon mask, mask adaptor, and mask lock ring. In HQ 558009, CBP stated without explanation that all the component parts of the Aerochamber are classified under subheading 9019.20, HTSUS which provides for, “Mechano-therapy appliance; massage apparatus; psychological aptitude-testing apparatus; ozone therapy, oxygen therapy, aerosol therapy, artificial respiration or other therapeutic respiration apparatus; parts and accessories thereof: Ozone therapy, oxygen therapy, aerosol therapy, artificial respiration or other therapeutic respiration apparatus; parts and accessories thereof.” CBP next determined the NAFTA country of origin marking of two models of Aerochamber and found that, pursuant to Section 102.11 of the interim NAFTA regulations, the Aerochamber devices became goods of the U.S. and were excepted from marking pursuant to Section 134.35(b) and because the goods were processed by the importer, the outermost container of the goods were also excepted from marking. ISSUE: Whether the silicone valve is classified as an other article of plastic of heading 3926, HTSUS, or as a part of heading 9019, HTSUS. LAW AND ANALYSIS: Merchandise imported into the United States is classified under the HTSUS. 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 which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all classification purposes. GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relevant section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the heading and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order. The HTSUS provisions under consideration in this case are as follows: 3926 Other articles of plastics and articles of other materials of headings 3901 to 3914. 9019 Mechano-therapy appliance; massage apparatus; psychological aptitude-testing apparatus; ozone therapy, oxygen therapy, aerosol therapy, artificial respiration or other therapeutic respiration apparatus; parts and accessories thereof. Note 2(u) to Chapter 39 states that Chapter 39 does not cover articles of chapter 90. Therefore we must first determine whether the silicone valve is classified under heading 9019, HTSUS, which provides for, “Mechano-therapy appliance; massage apparatus; psychological aptitude-testing apparatus; ozone therapy, oxygen therapy, aerosol therapy, artificial respiration or other therapeutic respiration apparatus; parts and accessories thereof.” The term “part” is not defined in the HTSUS. In the absence of a statutory definition, the courts have fashioned two distinct but reconcilable tests for determining whether a particular item qualifies as a part for tariff classification purposes. See Bauerhin Technologies Limited Partnership, & John V. Carr & Son, Inc. v. United States, 110 F.3d 774 (Fed. Cir. 1997). Under the first test, articulated in United States v. Willoughby Camera Stores, 21 C.C.P.A. 322 (1933), an imported item qualifies as a part only if can be described as an “integral, constituent, or component part, without which the article to which it is to be joined, could not function as such article.” Bauerhin, 110 F.3d at 779. Pursuant to the second test, set forth in United States v. Pompeo, 43 C.C.P.A. 9 (1955), a good is a “part” if it is “dedicated solely for use” with a particular article and, “when applied to that use…meets the Willoughby test.” Bauerhin, 110 F.3d at 779 (citing Pompeo, 43 C.C.P.A. at 14); Ludvig Svensson, Inc. v. United States, 63 F. Supp. 2d 1171, 1178 (Ct. Int'l Trade 1999) (holding that a purported part must satisfy both the Willoughby and Pompeo tests). An item is not a part if it is “a separate and distinct commercial entity.” Bauerhin, 110 F.3d at.779. The term “accessory” is not defined in the HTSUS or in the Harmonized Commodity Description and Coding Explanatory Notes (ENs). However, this office has previously stated that the term “accessory” is generally understood to mean an article which is not necessary to enable the goods with which they are intended to function. They are of secondary importance, but must, however, c

Merchandise imported into the United States is classified under the HTSUS. 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 which requires otherwise, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law for all classification purposes.GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relevant section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the heading and legal notes do not otherwise require, the remaining GRIs 2 through 6 may then be applied in order. The HTSUS provisions under consideration in this case are as follows:3926 Other articles of plastics and articles of other materials of headings 3901 to 3914. 9019 Mechano-therapy appliance; massage apparatus; psychological aptitude-testing apparatus; ozone therapy, oxygen therapy, aerosol therapy, artificial respiration or other therapeutic respiration apparatus; parts and accessories thereof. Note 2(u) to Chapter 39 states that Chapter 39 does not cover articles of chapter 90. Therefore we must first determine whether the silicone valve is classified under heading 9019, HTSUS, which provides for, “Mechano-therapy appliance; massage apparatus; psychological aptitude-testing apparatus; ozone therapy, oxygen therapy, aerosol therapy, artificial respiration or other therapeutic respiration apparatus; parts and accessories thereof.”The term “part” is not defined in the HTSUS. In the absence of a statutory definition, the courts have fashioned two distinct but reconcilable tests for determining whether a particular item qualifies as a part for tariff classification purposes. See Bauerhin Technologies Limited Partnership, & John V. Carr & Son, Inc. v.