CLA-2 RR:CR:GC 961456 JAS
Port Director of Customs
1000 2nd. Ave., Suite 2100
Seattle, WA 98104-1049
RE: PRD 3004-96-100797; Spa, Hot Tub; Acrylic/Fiberglass Shell, Jets, Pump, Motor, Filters, Electric Heater; Hydro-Message Apparatus; Mechano-Therapy Equipment, Accelerated Duty Reductions under NAFTA; Heading 9905.90.13, HQ 957383
Dear Port Director:
This is our decision on Protest 3004-96-100797, filed
against your classification under the Harmonized Tariff Schedule
of the United States (HTSUS) of complete spas. The entries under
protest were liquidated on September 6, 1996, and this protest
timely filed on December 4, 1996.
FACTS:
The merchandise in issue is identified as spas. They are
hydro-massage devices of the domestic type, also called hot tubs.
They consist of a hard plastic shell with molded seats to
accommodate multiple occupants, electric motor with heating
element, one or more pumps, filters, jet sprays, controls, with
cabinetry typically of cedar, all imported unassembled.
The spas were entered under a provision in HTS heading 3924
for other household articles and toilet articles of plastics. As
goods originating in Canada, the spas were eligible for
preferential tariff treatment under the North American Free Trade
Agreement (NAFTA). However, based on a ruling letter on
substantially similar merchandise, you liquidated the entry under
a provision in HTS heading 9019 for mechano-therapy appliances
and massage apparatus, at the 1996 column 1 rate of 2.5 percent
ad valorem. On protest, a claim is asserted for the reduced
NAFTA rate of duty under subheading 9019.10.20, HTSUS, and an
additional claim is made for the accelerated duty reduction under
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heading 9905.90.13, HTSUS, which covers mechano-therapy equipment
provided for in subheading 9019.10.20, HTSUS. The parties agree
that the appropriate NAFTA verification documents were submitted.
On the Customs Form 6445 you now agree that the NAFTA claim under
subheading 9019.10.20, HTSUS, should be allowed.
The provisions under consideration are as follows:
9019 Mechano-therapy appliances; massage apparatus;...: parts and accessories thereof:
9019.10.20 Mechano-therapy appliances; message apparatus...2.5% but 0.8% (CA)
* * * *
9905.90.13 Mechano-therapy equipment (provided for in subheading 9019.10.20...Free (CA)
ISSUE:
Whether spas or hydro-message apparatus qualify for the
special tariff treatment under heading 9905.90.13.
LAW AND ANALYSIS:
Merchandise is classifiable under the Harmonized Tariff
Schedule of the United States (HTSUS) in accordance with the
General Rules of Interpretation (GRIs). GRI 1 states in part
that for legal purposes, classification shall be determined
according to the terms of the headings and any relative section
or chapter notes, and provided the headings or notes do not
require otherwise, according to GRIs 2 through 6.
The Harmonized Commodity Description and Coding System
Explanatory Notes (ENs) constitute the official interpretation of
the Harmonized System. While not legally binding on the
contracting parties, and therefore not dispositive, the ENs
provide a commentary on the scope of each heading of the
Harmonized System and are thus useful in ascertaining the
classification of merchandise under the System. Customs believes
the ENs should always be consulted. See T.D. 89-80. 54 Fed. Reg.
35127, 35128 (Aug. 23, 1989).
Initially, HQ 957383, dated January 30, 1995, confirms that
jetted baths and whirlpool spas of the domestic type are
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classifiable as massage apparatus, in subheading 9019.10.20,
HTSUS. However, the accelerated duty reduction under heading
9905.90.13, HTSUS, relates only to mechano-therapy equipment.
Relevant ENs at p. 1616, under the heading (I) MECHANO-THERAPY
APPLIANCES, state that such appliances are mainly used to treat
diseases of the joints or muscles, by mechanical reproduction of
various movements. It should be noted that such treatment is
usually carried out under medical supervision. The apparatus of
this heading should therefore be distinguished from the ordinary
physical culture or medical exercising equipment designed for use
in the home or in specially equipped premises. The same ENs on
p. 1617, under the heading (II) MASSAGE APPARATUS, state that
apparatus for massage of body parts usually operate by friction,
vibration, etc. They may be hand- or power-operated, or may be
of an electro-mechanical type with a motor built into the working
unit (vibratory-massaging appliances). While spas are not
specifically mentioned, apparatus principally used to massage
body parts utilizing water would be included in this group.
Thus, the spas under protest qualify as massage apparatus but not
as mechano-therapy appliances.
HOLDING:
Under the authority of GRI 1, the spas or hydro-massage
devices of the domestic type are provided for in heading 9019.
They are classifiable in subheading 9019.10.20, HTSUS. The
protest should be ALLOWED as to the NAFTA claim under this
provision. The protest should be DENIED as to the claim under
heading 9905.90.13, HTSUS.
In accordance with Section 3A(11)(b) of Customs Directive
099 3550-065, dated August 4, 1993, Subject: Revised Protest
Directive, you should 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 or entries
in accordance with the decision must be accomplished prior to
mailing the decision. Sixty days from the date of the decision
the Office of Regulations and Rulings will take steps to make the
decision available to Customs personnel via the Customs Rulings
Module in ACS and to the public via the Diskette Subscription
Service, the Freedom of Information Act and other public access
channels.
Sincerely,
John Durant, Director
Commercial Rulings Division