CLA 2 RR:CR:GC 962584 AML
Port Director of Customs
423 Canal Street
New Orleans, LA 70130
Attn.: Protest Office, Room 200
RE: Protest 2002 98 100122; Shower Massage Plus Shower Heads
Dear Port Director:
This is our decision on Protest 2002 98 100122, concerning your classification of hand held and wall mounted Shower Massage Plus units pursuant to the Harmonized Tariff Schedule of the United States (HTSUS). Photocopies were provided for our examination.
FACTS:
The merchandise under protest consists of hand held shower heads (model # 6904) and wall mounted shower heads (model #s 6906, 6906-10, 6908 and 6914), made primarily of plastic with a plastic or chrome finish, depending on the model. Literature provided refers to the merchandise as shower massagers. The shower heads have 4, 6 and 8 settings which vary the spray pattern of the water passing through them. All models have a “no-slip grip” feature on the water pattern selector and the handle.
The protestant claims that the merchandise is classifiable under a provision for massage apparatus under subheading 9019.10.20, Harmonized Tariff Schedule of the United States (HTSUS), or alternatively, within subheading 8424.89.70, HTSUS, as other mechanical appliances for spraying and dispersing liquids. The articles were entered during April, 1997, and the entries were liquidated during February and March, 1998, with classification in subheading 3924.90.55, HTSUS, as other household and toilet articles of plastic, other. This protest was timely filed on March 20, 1998.
ISSUE:
Whether the hand held and wall mounted shower massagers are classified in subheading 3924.90.55, HTSUS, as other household and toilet articles of plastic, other; or in subheading 8424.89.70, HTSUS, as other mechanical appliances for spraying and dispersing liquids; or within subheading 9019.10.20, HTSUS, as other mechano therapy appliances and massage apparatus; parts and accessories thereof ?
LAW AND ANALYSIS:
Initially we note that the protest was timely filed (i.e., within 90 days after but not before the notice of liquidation; see 19 U.S.C. 1514 (c)(3)(A)) and the matter is protestable (see 1514 U.S.C. 1514 (a)(2) and (5)).
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). 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 may then be applied.
The HTSUS headings under consideration are as follows:
3924 Tableware, kitchenware, other household articles
and toilet articles, of plastics:
3924.90 Other:
3924.90.55 Other.
* * * * * * * * * * * *
8424 Mechanical appliances (whether or not hand
operated) for projecting, dispersing or spraying
liquids or powders; fire extinguishers, whether
or not charged; spray guns and similar appliances;
steam or sand blasting machines and similar
jet projecting machines; parts thereof:
8424.89 Other:
8424.89.70 Other.
* * * * * * * * * * * *
9019 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:
9019.10 Mechano therapy appliances; massage
apparatus; psychological aptitude testing
apparatus; parts and accessories thereof:
9019.10.20 Mechano therapy appliances
and massage apparatus;
parts and accessories thereof.
Chapter 39, Note 2(r), HTSUS, states that Chapter 39 does not cover articles of Chapter 90 (for example, optical elements, spectacle frames, drawing instruments). Therefore, we first address whether the merchandise is described by heading 9019, HTSUS.
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).
General EN to Chapter 90, HTSUS, at page 1576, states, in part, that:
This Chapter covers a wide variety of instruments and apparatus which are, as a rule, characterized by their finish and high precision. Most of them are used mainly for scientific purposes (laboratory research work, analysis, astronomy, etc.), for specialized technical or industrial purposes (measuring or checking, observation, etc.) or for medical purposes.
EN 90.19, at page 1617, states:
(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 power operated, or may be of an electro mechanical type with a motor built in to the working unit (vibratory massaging 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.).
This group includes simple rubber rollers or similar massaging devices. It also covers appliances for massaging the breasts, using the action of water distributed by a series of small nozzles mounted inside a form fitted over the breast, and made to revolve by a stream of water introduced through a flexible tube.
The following are also regarded as massage apparatus within the meaning of this heading: mattresses designed to prevent or treat bedsores by constantly varying the places at which the weight of the patient’s body rests and also providing a superficial massage effect on tissues liable to necrosis.
The ENs indicate that a massage apparatus is one that provides massaging by friction, vibration, etc. Medical dictionaries provide similar definitions. 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 991 992, 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, 8 Fed. Cir. (T) 153, 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. It is Customs view that the massage apparatus of heading 9019, HTSUS, must provide a therapeutic benefit.
Protestant cites Headquarters Ruling Letter (HQ) 957383, dated January 30, 1995, and New York Ruling Letter (NY) 871935, dated March 25, 1992, to support its classification of shower heads as massage apparatus. HQ 957383 involved the classification of jetted baths and whirlpool spas for domestic use. Customs determined that “domestic use” tub/hydromassage units, like the “institutional” tub/hydromassage units of NY 871935, are classified under subheading 9019.10.20, HTSUS. NY 871935 involved the classification of a Whirlpool Bathing System that provided therapeutic bathing and whirlpool hydromassage for geriatric/disabled patients. It included a lift for transport in and out of the tub. The merchandise in that ruling was considered curative medical equipment and Customs classified it under subheading 9019.10.20, HTSUS, as massage apparatus.
The shower heads are clearly distinguishable from tub/hydromassage units. HQ 957383 and NY 871935 refer to merchandise that produced therapeutic benefits to the user. The literature submitted states that the shower heads help relieve stress and tension. This, we find, does not satisfy the definitions advanced by the ENs and the Courts. There is no evidence that the shower heads give a therapeutic massage. Thus, the subject merchandise is not described by heading 9019, HTSUS. Accordingly, we must now determine whether the shower heads are described by headings 3924 or 8424, HTSUS.
We next address potential classification within heading 8424, HTSUS. The ENs for heading 8424, pages 1286 - 1288, provide in pertinent part:
This heading covers machines and appliances for projecting, dispersing or spraying steam, liquids or solid materials (e.g., sand, powders, granules, grit or metallic abrasives) in the form of a jet, a dispersion (whether or not in drips) or a spray.
(A) FIRE EXTINGUISHERS, WHETHER OR NOT CHARGED
* * *
(B) SPRAY GUNS AND SIMILAR APPLIANCES
* * *
(C) STEAM OR SAND BLASTING MACHINES AND SIMILAR JET PROJECTING MACHINES
* * *
(D) SYRINGES, SPRAYS AND POWDER DISTRIBUTORS
* * *
Provided they incorporate mechanical devices for producing or dispersing the spray or jet, or for automatically orientating the spray head (including simple mechanisms activated by water pressure), the heading includes the following types of appliances, whether fixed, transportable or mobile:
(1) Sprinklers and sprays for lawns, orchards, etc. (e.g., rotary
sprays and oscillating sprays) [emphasis in original].
* * *
(E) IRRIGATION SYSTEMS
The shower massage devices are not described by any of the subheadings within heading 8424, HTSUS. The heading covers machines and appliances. The shower massagers are not mechanical, and do not have industrial or commercial application. Classification within heading 8424, HTSUS, is precluded.
Because the shower heads are made of plastic with a minimal amount of chrome, there is no disagreement that the plastic components, not the chrome, impart the essential character to the merchandise.
EN 39.24, at page 621, states that heading 3924 includes:
[t]oilet articles (whether for domestic or non domestic use) such as toilet sets (ewers, bowls, etc.), sanitary pails, bed pans, urinals, chamber pots, spittoons, douche cans, eye baths; soap dishes, towel rails, tooth brush holders, toilet paper holders, towel hooks and similar articles for bathrooms, toilets or kitchens, not intended for permanent installation in or on walls. However, such articles intended for permanent installation in or on walls or other parts of buildings (e.g., by screws, nails, bolts or adhesives) are excluded (heading 39.25).
In this instance, the evidence presented illustrates that the shower heads are easily connected to a faucet or shower pipe and do not have the character of being fixtures for permanent installation in or on walls. Moreover, we note NY 810116, dated May 24, 1995, that classified similar shower heads under subheading 3924.90.55, HTSUS. We therefore conclude that the merchandise is described by heading 3924, HTSUS.
This determination conforms with previous decisions of this office. In HQ 960011, dated September 23, 1998, hand held and wall mounted shower massage units were classified within subheading 3924.90.55, HTSUS, as “[t]ableware, kitchenware, other household articles and toilet articles, of plastics: [o]ther: [o]ther.”
HOLDING:
Under the authority of GRI 1, the shower heads are classifiable in subheading 3924.90.55, HTSUS, as “[t]ableware, kitchenware, other household articles and toilet articles, of plastics: [o]ther: [o]ther.”
This protest should be DENIED. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, 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 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 make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
John Durant, Director
Commercial Rulings Division