CLA-2 RR:CR:TE 967454 SG
Mr. Brian Kavanaugh, Trade Advisor
Deringer Logistics Consulting Group
1 Lincoln Blvd., suite 225
Rouses Point, NY 12979
RE: Request for Reconsideration of NY B89692, dated October 6, 1997; Infrared Heating Pad
Dear Mr. Kavanaugh:
This is our decision on your request for reconsideration of New York Ruling letter (NY) B89692, dated October 6, 1997, on behalf of Thermotex Therapy Systems, classifying, under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), several models of infrared heating pads under subheading 8516.79.0000, HTSUSA. A sample and descriptive literature was provided.
After review of NY B89692, Customs and Border Protection (CBP) has determined that the classification of the heating pads under subheading 8516.79.0000, HTSUSA, is correct. FACTS: In NY B89692, dated October 6, 1997, we classified several models of infrared heading pads designed to the shape of various body parts under subheading 8516.79.0000, HTSUSA, as other electrothermic domestic appliances. You believe that the pads are more properly classified under subheading 9018.20.0040, HTSUSA, as " Instruments and appliances used in medical, surgical, dental or veterinary sciences, including scintigraphic apparatus, other electro-medical apparatus and sight-testing instruments: Ultraviolet or infrared ray apparatus, and parts and accessories thereof: Therapeutic."
You advise that the descriptive literature indicates that the heating pad is used for therapeutic treatment through the emission of infrared light radiation. It is used for the temporary relief of pain resulting from inflammation of the joints, tendonitis and tissues,
associated with conditions such as arthritis, bursitis, tendonitis, tennis elbow, etc. Based on this it is your belief that the heating pads are more correctly classified as infrared ray apparatus under 9018.20, HTSUS.
ISSUE: Whether infrared heating pad is classified under subheading 8516.79.0000, HTSUS, as an electrothermic domestic appliance or under subheading 9018.20.0040, HTSUS, as a therapeutic infrared ray apparatus. 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 interpreting the headings and subheadings, Customs and Border Protection (CBP) looks to the Harmonized Commodity Description and Coding System Explanatory Notes (ENs). Although not legally binding, they provide a commentary on the scope of each heading of the HTSUS. It is CBP's practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
Heading 9018, HTSUS, is a use provision, and provides for instruments and appliances used in medical, surgical, dental or veterinary sciences, including scintigraphic apparatus, other electro-medical apparatus and sight-testing instruments. Additional U.S. Rule of Interpretation 1(a), HTSUS, states that in the absence of special language or context which otherwise requires, a tariff classification controlled by use (other than actual use) is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation, of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use. The EN to heading 9018 states that, "[t]his 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), either to make a diagnosis, to prevent or treat an illness or to operate, etc." The heating pads are not classifiable as a medical instrument or apparatus. They are not used directly in a professional practice for diagnosis, prevention or treatment of diseases, the correction of deformities and defects, or the repair of injuries. The literature on your web cite indicates that it is a "convenient, portable therapy system that you can use at home, in the office, while driving or on vacation to provide effective
temporary pain relief wherever and whenever you need it." The heating pads are routinely used by the consumer in the home. Thus, the heating pads at issue here are not principally used in medical practice and are not classified as instruments used in medical science under heading 9018, HTSUS. See HQ 955887, dated August 4, 1994, in which we held that the fact that a product is aimed at a medical market does not necessarily establish the medical nature of the product for tariff purposes. In
HQ 964267, dated February 2, 2001, we ruled on a device used by estheticians and physicians, or their assistants, to perform “beautician” type services. We stated that "(i)t is apparent that these devices are intended for use by medical and non-medical personnel, who may not legally use medical instruments". In addition in HQ 966066, dated February 3, 2003, we ruled on items used by trained chemists or physicists in a laboratory. In all these cases we found that the items at issue were not principally used in medical practice.
In NY A83173, dated May 31, 1996, we classified heating pads with electric heating resistors in heading 8516, HTSUS. In addition in HQ 558878, dated June 28, 1995, and NY E88478, dated December 9, 1999, we classified electronic heating pad subassemblies under heading 8516, HTSUS. In the instant case, the heating pad is properly classified in subheading 8516.79.000, HTSUSA, as other electrothermic domestic appliances of a kind used for domestic purposes, other electrothermic appliances, other. The general column one rate of duty is 3.9 percent ad valorem
NY B89692, dated October 6, 1997, is affirmed.
Sincerely,
Myles B. Harmon, Director
Commercial Rulings Division