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HQ 961456




JULY 23, 1998

CLA-2 RR:CR:GC 961456 JAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 9019.10.20

Port Director of Customs
1000 2nd. Ave., Suite 2100
Seattle, WA 98104-1049

RE: PRD 3004-96-100797; Spa, Hot Tub; Acrylic/Fiberglass Shell, Jets, Pump, Motor, Filters, Electric Heater; Hydro-Message Apparatus; Mechano-Therapy Equipment, Accelerated Duty Reductions under NAFTA; Heading 9905.90.13, HQ 957383

Dear Port Director:

This is our decision on Protest 3004-96-100797, filed against your classification under the Harmonized Tariff Schedule of the United States (HTSUS) of complete spas. The entries under protest were liquidated on September 6, 1996, and this protest timely filed on December 4, 1996.

FACTS:

The merchandise in issue is identified as spas. They are hydro-massage devices of the domestic type, also called hot tubs. They consist of a hard plastic shell with molded seats to accommodate multiple occupants, electric motor with heating element, one or more pumps, filters, jet sprays, controls, with cabinetry typically of cedar, all imported unassembled.

The spas were entered under a provision in HTS heading 3924 for other household articles and toilet articles of plastics. As goods originating in Canada, the spas were eligible for preferential tariff treatment under the North American Free Trade Agreement (NAFTA). However, based on a ruling letter on substantially similar merchandise, you liquidated the entry under a provision in HTS heading 9019 for mechano-therapy appliances and massage apparatus, at the 1996 column 1 rate of 2.5 percent ad valorem. On protest, a claim is asserted for the reduced NAFTA rate of duty under subheading 9019.10.20, HTSUS, and an additional claim is made for the accelerated duty reduction under
heading 9905.90.13, HTSUS, which covers mechano-therapy equipment provided for in subheading 9019.10.20, HTSUS. The parties agree that the appropriate NAFTA verification documents were submitted. On the Customs Form 6445 you now agree that the NAFTA claim under subheading 9019.10.20, HTSUS, should be allowed.

The provisions under consideration are as follows:

9019 Mechano-therapy appliances; massage apparatus;...: parts and accessories thereof:

9019.10.20 Mechano-therapy appliances; message apparatus...2.5% but 0.8% (CA)

9905.90.13 Mechano-therapy equipment (provided for in subheading 9019.10.20...Free (CA)

ISSUE:

Whether spas or hydro-message apparatus qualify for the special tariff treatment under heading 9905.90.13.

LAW AND ANALYSIS:

Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (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.

The Harmonized Commodity Description and Coding System Explanatory Notes (ENs) constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the ENs 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 ENs should always be consulted. See T.D. 89-80. 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

Initially, HQ 957383, dated January 30, 1995, confirms that jetted baths and whirlpool spas of the domestic type are
classifiable as massage apparatus, in subheading 9019.10.20, HTSUS. However, the accelerated duty reduction under heading 9905.90.13, HTSUS, relates only to mechano-therapy equipment. Relevant ENs at p. 1616, under the heading (I) MECHANO-THERAPY APPLIANCES, state that such appliances are mainly used to treat diseases of the joints or muscles, by mechanical reproduction of various movements. It should be noted that such treatment is usually carried out under medical supervision. The apparatus of this heading should therefore be distinguished from the ordinary physical culture or medical exercising equipment designed for use in the home or in specially equipped premises. The same ENs on p. 1617, under the heading (II) MASSAGE APPARATUS, state that apparatus for massage of body parts 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 into the working unit (vibratory-massaging appliances). While spas are not specifically mentioned, apparatus principally used to massage body parts utilizing water would be included in this group. Thus, the spas under protest qualify as massage apparatus but not as mechano-therapy appliances.

HOLDING:

Under the authority of GRI 1, the spas or hydro-massage devices of the domestic type are provided for in heading 9019. They are classifiable in subheading 9019.10.20, HTSUS. The protest should be ALLOWED as to the NAFTA claim under this provision. The protest should be DENIED as to the claim under heading 9905.90.13, HTSUS.

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

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