CLA-2 RR:CR:GC 966563 DBS
Port Director
U.S. Customs and Border Protection
Building #77, JFK Airport
Jamaica, NY 11430
RE: Protest 4701-01-100229; “FaceMaster” electronic impulse muscle stimulator
Dear Port Director:
This is our decision on Protest 4701-01-100229 filed against your classification under the Harmonized Tariff Schedule of the United States (HTSUS), of a battery-operated electronic impulse facial muscle stimulator. The entries were liquidated on August 3, 2001, and the protest was timely filed on November 1, 2001. Multiple protests have been filed involving substantially similar goods. In accordance with section D(1)(e) of Customs Directive #099-3550-065, dated August 1, 1993, this protest has been designated the “lead” protest.
FACTS:
The merchandise at issue, the “FaceMaster,” is a battery-powered, handheld device that emits electrical impulses. It is comprised of a plastic base consisting of a control panel, which contains a timer and intensity controls, and two electric probes. The electrical impulses are supposed to contract the facial muscles to tone the skin in order to combat the aging process. Product literature was submitted for review.
The four entries subject to this protest were liquidated under subheading 8479.89.97, HTSUS (2000), as other mechanical appliances, having individual functions, not specified or included elsewhere in Chapter 84, HTSUS. However, upon the realization that heading 8543, HTSUS, was more accurate because the merchandise is electrical and not mechanical, you reliquidated the entries under subheading 8543.89.96, HTSUS (2000), as other electrical apparatus, having individual functions, not specified or included elsewhere in Chapter 85, HTSUS. Counsel for the protestant claims the merchandise is classified in subheading 9019.10.20, HTSUS (2000), as mechano-therapy appliances and massage apparatus.
ISSUE:
Whether the instant electrical impulse-emitting device is classified as massage apparatus in heading 9019, HTSUS, or as electrical apparatus having individual functions in heading 8543, HTSUS.
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 may then be applied.
In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) may be utilized. ENs, though not dispositive or legally binding, provide commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. Customs believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The 2000 HTSUS provisions under consideration are as follows:
8479 Machines and mechanical appliances, having individual functions, not specified or included elsewhere this chapter; parts thereof:
Other machines and mechanical appliances:
8479.89 Other:
Other:
8479.89.97 Other
* * *
8543 Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter; parts thereof:
Other machines and apparatus:
8543.89 Other:
Other:
Other:
8543.89.96 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
Counsel for the protestant contends that the FaceMaster is a massage device that tones and massages the facial skin by means of electrical impulses applied to specific facial areas for a set duration of time, and is therefore classified under heading 9019, HTSUS. EN 90.19 (II) describes massage apparatus as follows:
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 ENs indicate that a massage apparatus of heading 9019, HTSUS, is one that provides massaging, usually 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. Other sources provide definitions of "massage" that include the terms manipulation, manual and/or mechanical. For example, Marriott Hotel's Spa Glossary provides, "Manipulation of skin, muscles and joints to relax muscle spasm, relieve tension, improve circulation and hasten the elimination of wastes…" www.marriot.com/explore/spa /glossary.asp; see also www.google.com/search?q=define: Massage+(Therapy). Citing The American Heritage Dictionary, New College Edition, The Court of International Trade (CIT) found that the term “therapeutic” commonly means “having healing or curative powers.” Richards Medical Co. v. United States, 13 CIT 519, 521, 720 F. Supp. 998,1000 (1989), aff’d 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, 13 CIT at 521.
Thus, it has been Customs position that the massage apparatus of heading 9019, HTSUS, must provide a therapeutic benefit, and must operate by vibration, hydro-therapy or other means that manipulates muscles such as kneading, stroking, etc. See HQ 960011, dated September 23, 1998; HQ 962584, dated July 27, 1999; HQ 961456, dated July 23, 1998; HQ 963727, dated January 28, 2001, HQ 965700, dated August 2, 2002. Cf. HQ 960011, dated September 23, 1998.
As stated above, counsel for the protestant claims the FaceMaster massages the face, and is therefore classified as massage apparatus. Counsel relies on HQ 954181, dated February 28, 1994, which classified an electronically operated facial esthetic device incorporating a Tesla function which emits an electron discharge, and a patting device, whose attachments move at variable speeds and strengths against the skin, in heading 9019, HTSUS. Counsel compares the instant device with the device in HQ 954181, stating that they perform the same functions by means of electrical discharge, and should therefore be classified in the same provision. However, we disagree with this conclusion.
The product in HQ 954181 is a multifunctional device. As stated in the ruling, the Tesla function is prima facie classifiable in heading 8543, HTSUS. The patting function is prima facie classifiable in heading 9019, HTSUS. Therefore, the device is not classifiable according to GRI 1, but rather by GRI 3, because it is a composite good in which two or more headings provided for only part of the good. In applying GRI 3(b) which directs classification of a composite good by its essential character, we determined that neither provided the good with its essential character. Therefore, we turned to GRI 3(c), which directs classification under the heading which occurs last in numerical order of those which equally merit consideration. In that case, heading 9019, HTSUS, occurred last in numerical order, and thus the good was classified there.
Counsel also relies on NY A86426, dated August 26, 1999, which classified an electronic ultrasound massager. By means of ultrasound, the device vibrated against the body in heading 9019, HTSUS. This product performs the function of massaging the body by means of vibration, as per EN 90.19. The FaceMaster, on the other hand, does not.
The FaceMaster emits electrical impulses to contract/stimulate the muscles of the face. It does not operate by performing manual or mechanical manipulation of muscles, tissue, joints or the like, as an article that vibrates does. The device does not move in any way, it simply transmits microcurrents through the probes. Further, the intended benefit is cosmetic, rather than therapeutic. We also note that in a review of spa treatments, those which utilize electrical impulses to stimulate the muscles are listed separately from massage therapy, thus distinguishing muscle stimulation from muscle manipulation. Accordingly, the FaceMaster does not function as massaging apparatus of heading 9019, HTSUS.
We agree with counsel that the FaceMaster performs a similar function as the Tesla function in the device classified in HQ 954181. However, as noted above, we stated the Tesla function was prima facie classifiable in heading 8543, HTSUS. General EN (A) to Chapter 85, as well as the General ENs to Chapter 84, above, states that Chapter 85 covers all electrical machinery and equipment, but for a few exceptions, which do not apply here. In addition, General EN (A)(3), describes as included in the scope of the chapter, and specifically refers to heading 8543, "Certain machines and appliances which depend for their operation on the properties or effects of electricity, such as its electro-magnetic effects, heating properties etc." The EN to heading 8543, HTSUS, describes the goods of the heading, in pertinent part, as follows:
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. The principal electrical goods covered more specifically by other Chapters are electrical machinery of Chapter 84 and certain instruments and apparatus of Chapter 90.
Customs has also classified other products that electrically stimulate muscles via electrical impulses in heading 8543, HTSUS. See NY A83439, dated July 2, 1996 and NY J80299, dated February 25, 2003. As discussed above, the FaceMaster does not perform massage, but rather electrically stimulates facial muscles via electrical impulses. As its operation depends on the properties or effects of electricity, and as it is not more specifically provided for elsewhere in Chapter 85, the FaceMaster is also classified in heading 8543, HTSUS. By virtue of the fact that the device is not mechanical, heading 8479, HTSUS, should not have been considered.
HOLDING:
The FaceMaster is classified in subheading 8543.89.96, HTSUS, which
provides for “Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter; parts thereof: Other machines and apparatus: Other: Other: Other: Other.”
Since the rate of duty under the classification indicated above is more than the liquidated rate of certain entries under subheading 8479.89.97, HTSUS, and the same as the liquidated rate for the remainder of the entries, you are instructed to DENY the protest in full.
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 Bureau of Customs and Border Protection 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 Rulings Division