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HQ 957290




May 31, 1995

CLA-2 R:C:F 957290 ALS

CATEGORY: CLASSIFICATION

TARIFF NO.: 3924.90.5500

Mr. Al Roser
Roser Customs Service, Inc.
P.O. Box 48
Brownsville, TX 78520

RE: Thermoplastic Shells for Swimspas

Dear Mr. Roser:

This is in reference your inquiry about the subject product which was referred to this office for reply. Descriptive literature of the retail product was furnished with your request.

FACTS:

The article under consideration is a fiberglass reinforced thermoplastic shells which form the base of swimspas (also swim spas). The shells are fabricated in Mexico from plastics material manufactured in the United States. Subsequent to importation the product retailer may add large swim jets, small whirlpool jets, heaters or any combination of the above or none of the above, depending on the desires of the retail consumer. All of the items which are added to the swimspas shells subsequent to importation are of U.S. manufacture and are not imported in kit form with the plastic shells. The product comes in various sizes and in some cases the plastic shells, while a single unit, may be divided into two portions with the larger "pool" portion being considerably larger than the "spa" portion thereof. For example, in a 19 foot combination unit the pool portion occupies 14 feet thereof, in a 16 foot combination unit the pool portion occupies 11+ feet thereof. These units have a uniform nominal width of 7 feet 6 inches. The product is designed for situations where space limitations or local regulations prohibit the installation of a larger facility. The products are sold primarily for use in proximity to the user's house. The plastic shells, after the drilling of holes and the installation of swim jets, whirlpool jets, heaters, or other equipment, may be used for its ultimate intended purpose. - 2 -

According to the advertising literature, when the swim jets are installed, these shells are converted into "a challenging workout area for swimming, aquajogging and exercising." While such literature indicates that when water is heated the user is placed in a "relaxed atmosphere" there are no other uses, e.g., therapeutic massage or health benefits, specified, nor is there any indication as to the function of small whirlpool jets that may be added by the retailer at the time of retail sale.

ISSUE:

What is the classification of the subject product?

LAW AND ANALYSIS:

Classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is governed by the General Rules of Interpretation (GRI's). GRI 1 provides that the classification is determined first in accordance with the terms of the headings and any relative section and chapter notes. If GRI 1 fails to classify the goods and if the heading and legal notes do not otherwise require, the remaining GRI's are applied, taken in order.

We initially understood that the products being imported were completed swimspas ready for use. In other words, they were complete (containing all the plumbing, jets, heaters, etc.), except for installation in an above the ground or in-ground environment. Based thereon, we considered whether the product would be classifiable in subheading 9506.99.5500, HTSUSA, as a swimming pool, since one can, if the water jets are on, engage in a swimming activity as one would do in an in the ground or an above the ground swimming pool. Neither that subheading nor the Explanatory Notes (EN) relative to that subheading, representing the views of the international classification experts, contain any comment as to the scope of that subheading.

Since the EN do not provide any guidance as to the scope of that tariff provision, we contacted industry sources to ascertain how the swimspas are treated by the trade. Those sources advised us that a swimming pool normally contains still water and that, while it was possible to have jets installed in an above the ground pool, a swimming pool does not normally contain swim jets. The sources further advised us that these items are known as swimspas in the trade and that they are not marketed as swimming pools. These sources also noted that swimming pools contain still water. The sources indicated that the addition of swim jets or other water enhancing equipment to an article containing a large quantity of water, which might be considered a - 3 -
swimming pool, would take these articles out of that category. The National Pool and Spa Institute confirmed this and advised us that a small swimming pool is generally considered to be at least 15 x 36 feet. In addition, such Institute has advised us the jets in these types of units are to be distinguished from those in swimming pools. The jets in spas mix water and air while those in swimming pools merely recirculate water that has pumped through a pools filtration system. Further, while a user of a spa with swim jets is going through motions similar to swimming, that individual is not actually moving. The user is "swimming" in place against the pressure created by the swim jets. The industry sources do not consider these items to be swimming pools. The relationship between a swimspa and a swimming pool would appear to be similar to the relationship between a treadmill and a track. While the user of both of those items might be going through a similar motion, we would not call a treadmill a track.

We noted that spas, also known as jacuzzis or whirlpools, or hot tubs, have been historically classified in subheading 3922.90.0000, HTSUSA, which provides for baths, showerbaths...and similar sanitary ware, of plastics, other. Although Headquarters Ruling Letter (HRL) 078579 of April 29, 1987, to this same importer, then known by another name, held that the same or essentially similar product was classifiable in item 772.15, Tariff Schedules of the United States Annotated (TSUSA), our current review of the documentation of record with that ruling, confirms that that decision was based on our understanding that the completed article, ready for installation and use, was being imported. We have recently confirmed that the article then being imported as well as the current article consist only of the plastic shell or tub. They do not contain the appropriate plumbing nor are they so prepared as to be dedicated to a particular use until after importation when the holes for the swim jets, whirlpool jets, heater, etc., are added to the shell.

HRL 064405, dated February 12, 1981, which concerned a similar plastic shell, held that it was classifiable under the provision for articles not specially provided for of reinforced plastics in item 770.10, TSUSA. Further, in New York Ruling Letter (NYRL) 839530 of May 1, 1989, a similar product, specifically noted to have whirlpool jets, plastic pump and motor with an in-line electric heater, etc., was classified under the provision for household articles of plastics since it was used in or about a house. Another ruling, NYRL 896367, dated April 26, 1994, held that a similar plastic shell with holes drilled therein prior to importation for the installation of waters jets subsequent to importation, were classifiable in subheading 3922.90.0000, HTSUSA. We believe that the article under - 4 -
consideration, a plastic shell, is most similar to that in HRL 064405, i.e., articles not specially provided for wholly or almost wholly of reinforced...plastics.

While the articles under consideration, once the plumbing, electrical, and other components are added to them subsequent to importation, have some properties similar to mechano-therapy or hydromassage units classifiable in subheading 9019.10, HTSUSA, there is no indication that the completed items are designed or marketed for the purposes specified in subheading 9019.10, HTSUSA. They are intended for recreational and fitness purposes. Even if certain of the completed articles might serve the purposes noted in the referenced subheading, that conclusion would depend on the nature of the equipment which would be added to the plastic shells subsequent to importation and could not be ascertained when the imported article arrives in the United States. The tariff classification and dutiable status of the product must be ascertained based on its condition at the time of importation.

HOLDING:

Large fiberglass reinforced plastic shells which, subsequent to importation, will be made into swimspas, whirlpool units, or similar units by the drilling of holes and the installation of swim jets, whirlpool jets, heaters, etc., so as to permit the user thereof to swim in place, to jog in place or exercise, where space or local regulations do not permit the installation of a full size swimming pool, are classifiable in subheading 3922.90.0000, HTSUSA, which provides for baths, shower baths,...and similar sanitary ware, of plastics, other. Articles so classified are subject to a general rate of duty of 6.3 percent ad valorem.

Sincerely,

John Durant, Director
Commercial Rulings Division

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