CLA-2 RR:CR:GC 960011 HMC
Port Director of Customs
33 New Montgomery St., #1501
San Francisco, CA 94105
RE: Protest 2809-96-100422; Shower Massage Shower Heads;
Subheadings 3922.90.00, 9019.10.20; Chapter 39, Note 2 (r);
Explanatory Notes 39.24 and 90.19; Tableware, Kitchenware, Other
Household Articles and Toilet Articles of Plastics; Massage
Apparatus; NY 810116.
Dear Port Director:
This is our decision on Protest 2809-96-100422, filed
against your classification of the Windmere's "Shower Massage"
shower heads. The entries under protest were liquidated on
December 29, 1995, and February 2, 1996, and this protest timely
filed on March 28, 1996.
FACTS:
The merchandise under protest consists of a hand-held shower
head (style SM-2HCP) and a wall mounted shower head (style
SM3CP), made primarily of plastic with a chrome finish.
Literature provided refers to the merchandise as shower
massagers. The shower heads have three settings: spray,
spray/massage, and pulsating massage. The spray setting is
described as a concentrated, full shower spray that cleanses and
refreshes from head to toe. The spray/massage setting is
described as a gentle but invigorating massage to ease stress and
tension plus a soothing spray to rinse/refresh. The pulsating
massage setting is depicted as a brisk, stimulating massage to
work out after-exercise soreness and specific tension spots. A
company price list shows that the hand-held shower head has a
hose and an adaptor that connects the hose to a faucet. It also
shows the wall-mounted shower head by itself with no additional
adaptors. The package comes with instructions for installation.
Protestant claims the merchandise is classifiable under a
provision for massage apparatus under subheading 9019.10.20 of
the Harmonized Tariff Schedule of the United States (HTSUS).
However, the entries were liquidated under subheading 3922.90.00,
HTSUS, as other baths, shower baths, washbasins, bidets, lavatory
pans, seats and covers, flushing cisterns and similar sanitary
ware, of plastics.
The 1995 provisions under consideration are as follows:
3922 Baths, shower baths, washbasins, bidets, lavatory
pans, seats and covers, flushing cisterns and
similar sanitary ware, of plastics:
3922.90.00 Other...6.3%
* * * *
3924 Tableware, kitchenware, other household articles
and toilet articles, of plastics:
3924.90 Other:
3924.90.55 Other...3.4%
* * * *
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 Mehano-therapy appliances and
massage apparatus; parts and
accessories thereof...3.4%
ISSUE:
Whether the shower heads are classifiable as massage
apparatus under subheading 9019.10.20, HTSUS, as baths, shower
baths, washbasins, bidets, lavatory pans, seats and covers,
flushing cisterns and similar sanitary ware of plastics under
subheading 3922.90.00, HTSUS, or as other household and toilet
articles under subheading 3924.90.55, HTSUS.
LAW AND ANALYSIS:
Merchandise is classifiable under the HTSUS in accordance
with the General Rules of Interpretation (GRIs). GRI 1 states in
part that for legal purposes, classification shall be determined
according to the terms of the headings and any relative section
or chapter notes, and provided the headings or notes do not
require otherwise, according to GRIs 2 through 6.
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. Protestant contends that the shower heads are
massage apparatus of subheading 9019.10.20, HTSUS, based on the
premise that they are designed to help relieve stress and
tension.
Chapter 39, Note 2(q), 1995 HTSUS, [currently 2(r)] states
that Chapter 39 does not cover: articles of chapter 90 (for
example, optical elements, spectacle frames, drawing
instruments). We then need to determine if the merchandise is
described by heading 9019, HTSUS.
The Harmonized Commodity Description And Coding System
Explanatory Notes (EN's) constitute the official interpretation
of the Harmonized System. While not legally binding on the
contracting parties, and therefore not dispositive, the EN's
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 EN's 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 seem to have a similar definition. 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, 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 HQ 957383, dated January 30, 1995, and NY
871935, dated March 25, 1992, to support its classification of
shower heads as massage apparatus. 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. 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.
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 3922 or 3924, HTSUS.
Heading 3922, HTSUS, provides for baths, shower-baths, wash-basins, bidets, lavatory pans, seats and covers, flushing
cisterns and similar sanitary ware of plastics. The shower heads
are not like any of the items described by this heading. 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.
HOLDING:
Under the authority of GRI 1, the shower heads are
classifiable in subheading 3924.90.55, HTSUS, as "Tableware,
kitchenware, other household articles and toilet articles, of
plastics: Other: Other. The 1995 rate of duty is 3.4%.
This protest should be GRANTED. In accordance with Section
3A(11)(b) of Customs Directive 099 3550-065, dated August 4,
1993, Subject: Revised Protest Directive, you should 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 take steps to make the decision
available to Customs personnel via the Customs Rulings Module in
ACS and to the public via the Diskette Subscription Service, the
Freedom of Information Act and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division