HQ 0086040 - Protest No. 3501-8-000064 of July 26, 1988 and request for further review filed by Minnesota Mining and Manufacturing Co., St. Paul Minnesota - United States International Trade Commision Rulings

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HQ 086040

December 7, 1989

CLA-2 CO:R:C:G 086040 MBR

CATEGORY: CLASSIFICATION

TARIFF NO.: 688.42

District Director of Customs
U.S. Customs Service
U.S. Courthouse, Room 137
110 South Fourth Street
Minneapolis, Minnesota 55401

RE: Protest No. 3501-8-000064 of July 26, 1988 and request for further review filed by Minnesota Mining and Manufacturing Co., St. Paul Minnesota

Dear Sir:

Protest and request for further review were timely filed against your liquidation of entry numbers 110-1996288 and 110- 1996349 covering shipments of "Tenzcare 6848" electric stimulators.

FACTS:

The "Tenzcare" stimulator is a device used by individuals to relieve pain by electrically stimulating nerves. The stimulator is believed to work by either blocking the pain signal from being transmitted to the brain or by activating the production of endorphins in the brain, which act as pain suppressors.

The device is regulated by the Food and Drug Administration and can only be acquired through a doctor's prescription.

ISSUE:

Whether the "Tenzcare 6848" is classifiable as medical therapeutic apparatus under item 709.17 or as other electrical articles under item 688.42, under the Tariff Schedules of the United States (TSUS)?

LAW AND ANALYSIS:

The importer argues that the FDA classifies the "Tenzcare 6848" as a medical device, therefore, so too, should U.S. Customs. However, interpretations under laws other than those relating to tariff classification are not determinative of duty assessment questions. See Amersham Corporation v. United States, 564 F.Supp. 813 (Ct. Int'l Trade 1983).

Item 709.27, governing medical therapeutic apparatus, is a use provision and, as such, classification thereunder is determined by chief use. See e.g., Schick X-Ray Co., Inc. v. United States, 62 Cust. Ct. 97, 100, C.D. 3689, 295 F. Supp. 302 (1969). In turn, chief use for tariff schedule purposes is defined in Rule 10(e) of the General Headnotes and Rules of Interpretation of the schedules, as follows:

10. General Interpretive Rules. For the purposes of these schedules-
(e) in the absence of special language or context which otherwise requires-
(i) 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 articles of that class or kind to which the imported articles belong and the controlling use is the chief use, i.e. the use which exceeds all other uses (if any) combined;

It has been our position that he tariff provision for "medical instruments" includes only instruments and apparatus which are used in the professional practice of medicine for the diagnosis, prevention, or treatment of diseases. There is no evidence to suggest that the "Tenzcare 6848" electrical stimulators are used chiefly in the professional practice of medicine. In fact, quite to the contrary, the importer has stated that the doctor merely writes a prescription for the device and it is the patients themselves who actually utilize these devices.

Therefore, the "Tenzcare 6848" is appropriately classifiable under item 688.42, TSUS, which provides for electrical articles: other.

HOLDING:

The "Tenzcare 6848" is classifiable under item 688.42, which provides for electrical articles: other. Therefore, you should deny this protest in full. A copy of this decision should be forwarded to the Minnesota Mining and Manufacturing Co.

Sincerely,

John Durant, Director
Commercial Rulings Division

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