CLA-2 RR:CR:GC 962181 MGM
Port Director
U.S. Customs Service
1624 E. 7th Ave.
Ste. 101
Tampa, FL 33605
Re: Protest 1801-98-100034; “Forever Free” and “Total Perfection” Hair Removal Devices; HQ 085064
Dear Port Director:
This is our decision on protest 1801-98-100034, concerning your classification of the “Forever Free” and “Total Perfection” hair removal devices under the Harmonized Tariff Schedule of the United States (HTSUS).
FACTS:
The subject commodities are two hair removal devices which operate by applying an electrical current to unwanted hair. The current is applied for a period of about fifteen minutes, then the hair is removed. The hair removal devices do not have electric motors.
These devices are regulated by the United States Food and Drug Administration as Class III medical devices, however they are available for retail sale without a prescription and are not of a type used by physicians.
The thirty-four entries whose classification is here protested were made in April 1997 through January 1998, and liquidated in April of 1998. A protest was timely filed on July 1, 1998.
ISSUE:
Whether the “Forever Free” and “Total Perfection” hair removal devices are instruments used in medical science?
LAW AND ANALYSIS:
Merchandise imported into the U.S. 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.
GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule and any relative section or chapter notes and, unless otherwise required, according to the remaining GRIs taken in order. GRI 6 requires that the classification of goods in the subheadings of headings shall be determined according to the terms of those subheadings, any related subheading notes and mutatis mutandis, to the GRIs. In interpreting the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, although not dispositive or legally binding, provide a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUSA. See, T.D. 89 80, 54 Fed. Reg. 35127 (August 23, 1989).
The following headings are relevant to the classification of this product:
8510 Shavers, hair clippings and hair-removing appliances, with self-contained electric motor; parts thereof:
8510.30.00 Hair-removing appliances
* * * * * * * * * * * *
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
* * * * * * * * * * * *
9018 Instruments and appliances used in medical, surgical, dental or veterinary sciences, including scintigraphic apparatus, other electro-medical apparatus and sight-testing instruments; parts and accessories thereof:
9018.90 Other instruments and appliances and parts and accessories thereof:
Other:
Electro-medical instruments and appliances and parts and accessories thereof:
Other:
9018.90.75 Other
Customs classified these items in heading 8510, HTSUS. However, this heading is limited by its terms to items “with self-contained electric motor[s].” The hair removal devices at issue do not have electric motors and therefore do not fall within heading 8510, HTSUS.
The protestant entered the merchandise under heading 9018, HTSUS, as instruments used in medical science. The Explanatory Notes (EN) state that “This heading covers a very wide range of instruments and appliances which, in the vast majority of cases, are used only in professional practice (e.g., by doctors, surgeons, dentists, veterinary surgeons, midwives).” EN 90.18, HTSUS. Here, the devices are not of the sort used by physicians. Consumers Digest, August 1998, 82. Rather, they are used in the home for cosmetic purposes. As such, they are not instruments used in medical science classified in heading 9018, HTSUS.
Protestant argues that FDA classification as a Class III medical device indicates that tariff classification as an instrument used in medical science is appropriate. However, “It is well established that statutes, regulations and administrative interpretations relating to ‘other than tariff purposes’ are not determinative of Customs classification disputes.” Amersham Corp. v. United States, 5 CIT 49, 56 (1983). Articles are classified by the FDA to protect public safety, not as guidance to Customs classification. HQ 085064, dated August 24, 1990.
These devices are electrical apparati with individual functions not elsewhere specified or included in any other heading of the tariff. They are thus classified in heading 8543, HTSUS. Within this heading, they are not described by any of the more specific provisions and thus fall within the residual provision.
HOLDING:
You should deny the protest, except to the extent reclassification of the merchandise as indicated above results in a partial allowance. The “Forever Free” and “Total Perfection” hair removal devices are classified in subheading 8543.89.96, HTSUS.
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