CLA-2 OT:RR:CTF:TCM H271911 ALS
Port Director
U.S. Customs and Border Protection
6747 Engle Road
Middleburg Heights, Ohio 44130
RE: Application for Further Review Protest No. 4101-15-100473; Tariff classification of Philips Consumer Lifestyle’s Lumea Comfort IPL Hair Removal System.
Dear Port Director:
This letter is in reply to an Application for Further Review (“AFR”) of Protest number 4101-15-100473, filed on behalf of Philips Consumer Lifestyle NA (also referred to herein as “Protestant”) on September 14, 2015. The Protest is against U.S. Customs and Border Protection’s (“CBP’s”) tariff classification of the above-referenced Lumea Comfort IPL Hair Removal System (also referred to herein as “HRS”) under subheading 8510.30.0000 of the Harmonized Tariff Schedule of the United States (“HTSUS”).
FACTS:
The HRS is described as an “intense pulsed light [IPL] hair removal device.” It is a hand applicator that contains six light emitting diode (LED) lights, a temperature sensor, and a skin proximity sensor. The HRS emits pulses of light when it is held directly on skin; the light pulses dislodge hair from the body at the hair root. It does not emit light pulses in open air, only when the sensor detects skin. For safety reasons, the HRS also detects darker skin and will not emit light pulses if skin is too dark. The body of the HRS is made of plastic and is small enough to be held and used with one hand. The HRS has a battery that is charged either when the device is plugged directly into an electrical outlet or indirectly using an optional adapter.
The Protestant had entered a number of HRSs under subheading 8510.30.0000, HTSUS, as hair-removing appliances. The Protestant now asserts that the HRS is properly classified under subheading 9018.90.7580, HTSUS, as other instruments used in medical sciences.
ISSUE:
Is the Lumea Comfort IPL Hair Removal System, as described above, properly classified under heading 8510, HTSUS, which provides for “Shavers, hair clippers and hair-removing appliances, with self-contained electric motor; parts thereof”, or heading 8543, HTSUS, which provides for “Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter; parts thereof”, or heading 9018, HTSUS, which provides for “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”?
LAW AND ANALYSIS:
Initially, we note that the Protest was timely filed on September 14, 2015, which is within 180 days of the date of the liquidation of the earliest subject entry, July 31, 2015. See 19 U.S.C. §1514(c)(3)(B). Additionally, CBP’s classification of the merchandise is a protestable matter under 19 U.S.C. §1514(a)(2). Further Review of Protest No. 4101-15-100473 is properly accorded to the Protestant pursuant to 19 CFR 174.24(b).
Classification under the HTSUS is determined in accordance with the General Rules of Interpretation (“GRI”) and, in the absence of special language or context which otherwise requires, by the Additional U.S. Rules of Interpretation (“ARI”). GRI 1 provides that the classification of goods shall be “determined according to the terms of the headings 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, GRIs 2 through 6 may be applied in order.
The following headings and subheadings of the HTSUS are under consideration in this case:
8510 Shavers, hair clippers 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:
8543.70 Other machines and apparatus:
Other:
Other:
8543.70.99 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:
Other:
9018.90.75 Other…
* * * * * * * * * * * * *
Note 1(m) to Section XVI, HTSUS, under which headings 8510 and 8543 fall, provides the following:
2. This section does not cover:
(m) Articles of chapter 90;…
Thus, in accordance with Note 1(m), if the subject merchandise is prima facie classifiable under heading 9018, then it is excluded from being classified under heading 8510 or heading 8543.
The Protestant contends that the HRS should be classified under heading 9018 because it believes CBP has ruled that similar articles are to be classified under 9018. The Protestant cites to CBP Ruling NY N064535 (June 26, 2009), which classified a device “used in dermatology and aesthetic medicine for skin resurfacing and rejuvenation” that uses IPL technology under subheading 9018.90.7580. The Protestant also cites to CBP Ruling NY N052517 (March 10, 2009), which classified a device that performed several different dermatological treatments, such as acne, lesion removal, and hair removal, using IPL technology under subheading 9018.90.7580.
The Explanatory Notes (ENs) to the Harmonized Commodity Description and Coding System represent the official interpretation of the tariff at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). The ENs for heading 9018 state the following:
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), either to make a diagnosis, to prevent or treat an illness or to operate, etc. Instruments and appliances for anatomical or autoptic work, dissection, etc., are also included, as are, under certain conditions, instruments and appliances for dental laboratories (see Part (II) below). The instruments of the heading may be made of any material (including precious metals).
The ENs for heading 9018 also expressly state that “[t]his heading also covers instruments and appliances operated by laser or other light or photon beam processes and ultrasonic instruments and appliances.“ We also note that the ENs for heading 9018 do not exclude the subject HRS either by description or general reference.
As an appliance that is operated by a light beam process, it is partly described in the ENs for 9018. We must note, however, that the heading covers instruments and appliances which, “in the vast majority of cases, are used only in professional practice.” Indeed, the scope of heading 9018 focuses on instruments and appliances that are used in medical, surgical, dental, or veterinary services. The subject HRS is clearly meant for home personal use and is not marketed for the professional services expressly noted in heading 9018.
CBP has consistently held that home personal use merchandise is not classifiable under heading 9018. See, e.g., CBP Ruling HQ 962181 (January 13, 1999) (hair removal devices which operate by using electrical current classified under heading 8543, rejecting heading 8510 and 9018); CBP Ruling HQ 964267 (February 2, 2001) (heating pad classified under heading 8516, rejecting heading 9018, concluding “[t]he 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…”). These cases are distinguished from the cases the Protestant cites in that NY N064535 and NY N052517 both involve instruments that are meant for use by medical professionals. Given such, we therefore conclude that the Lumea Comfort IPL Hair Removal System is not classifiable under heading 9018, HTSUS.
We agree with Protestant that heading 8510 is not applicable to the HRS. Heading 8510 expressly covers appliances “with self-contained electric motor[s]”, which the HRS clearly does not. Furthermore, the ENs for heading 8510 state the following:
This heading also covers electro-mechanical hair-removing appliances with self-contained electric motor; these appliances, which grip the hair and pluck it out at the root, may operate with either a micro-roller, or a metal spiral which rotates around its own axis, or a guard, a depilating head and a set of depilating wheels.
The description of the HRS is not consistent with the description of merchandise to be classified under heading 8510, as put forth in the heading itself or the ENs thereto. Thus, the HRS is not classifiable under heading 8510, HTSUS.
Given the foregoing, we conclude that the HRS is an electrical machine with an individual function (hair removal using IPL) that is not elsewhere specified or included in any other heading of the HTSUS. Therefore, we further conclude that the subject Lumea Comfort IPL Hair Removal System is properly classified under heading 8543, HTSUS. Specifically, the HRS is properly classified under subheading 8543.70.99, 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…”
HOLDING:
By application of GRI 1, the Lumea Comfort IPL Hair Removal System is properly classified under heading 8543, HTSUS. Specifically, the HRS is properly classified under subheading 8543.70.99, 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…” The general column one rate of duty, for merchandise classified in this subheading is 2.6%.
Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.
The Protest should be DENIED in accordance with the LAW AND ANALYSIS section above. A copy of this ruling should be attached to the CBP Form 19 or equivalent document and provided to the protestant as part of the notice of action on the protest.
Sixty days from the date of the decision the Office of International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division