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HQ 964267




February 2, 2001

CLA-2 RR:CR:GC 946267 nel

CATEGORY: CLASSIFICATION

TARIFF NO.: 8479.89.97

Port Director
U.S. Customs Service
40 S. Gay Street
Baltimore, MD 21202

RE: Protest 1303-00-100003; Power Peel System

Dear Port Director:

This is our decision on Protest 1303-00-100003, timely filed on January 4, 2000, against your classification decision regarding the exfoliating system identified as the Power Peel System, under the Harmonized Tariff Schedule of the United States (HTSUS). This protest covers four entries. Entries dated September 28, November 10, and January 2, 1999, were liquidated on November 19, 1999. The entry dated October 26, 1999, was liquidated on November 26, 1999.

FACTS:

The merchandise at issue consists of electrically powered, motorized dermabrasion devices, identified as the Power Peel Microdermabrasion System, model nos. ALT-1000m, ALI-2000m, and ALI-1000a, and parts thereof, which include a technical kit, operating kits, plastic tips, stoppers, and disposable heads. The merchandise is described as “a mechanical exfoliating system used by both physicians and estheticians to rejuvenate the skin. This device utilizes vacuum pressure to pass ultra fine aluminum oxide microcrystals across the surface of the skin.” No further information was provided on the parts imported with these dermabrasion devices.

Product literature with pictures of the Power Peel models ALI-1000M and ALI-2000M were submitted. The product literature describing “Power Peel Treatments” states that, “with the aid of micro-crystals vacuumed through a delicate hand piece, a technician effects a superficial skin polishing.”

A letter from the Food and Drug Administration (FDA) dated December 9, 1996, to the President of the protestant company, Aesthetic Laser, Inc. (ALI), RE: K963204, classified a product of the trade name “Dermoabrader” as Class I. The ALI memorandum dated September 13, 1999, forwarding the FDA letter, describes the Power Peel products as equipment that is “a class I, non-medical device microdermabrasion systems or dermoabrader .”

Protestant entered the merchandise as an instrument used in medical science under heading 9018, HTSUS, and disputes Customs classification as a vacuum pump under heading 8414, HTSUS.

ISSUE:

Whether the Power Peel Microdermabrasion System is classified as an instrument or apparatus used in medical science, under heading 9018, HTSUS.

LAW & ANALYSIS:

The General Rules of Interpretation (GRIs) taken in their appropriate order provide a framework for classification of merchandise under the HTSUS. The majority of imported goods are classified by application of GRI 1; that is, according to the terms of the headings of the tariff schedule 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, then the remaining GRIs may be applied.

The Explanatory Notes (ENs) to the Harmonized Commodity Description and Coding System constitute the official interpretation of the tariff system at the international level. Though not dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS. Customs believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989).

The following headings of the HTSUS are relevant to the classification of the Power Peel System:

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.

8414: Air or vacuum pumps, air or other gas compressors and fans; ventilating or recycling hoods incorporating a fan, whether or not fitted with filters; parts thereof.

8479: Machines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter; parts thereof.

8543: Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter; parts thereof.

The merchandise was entered under heading 9018, HTSUS, as instruments used in medical science. As EN 90.18 states, “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).” The Power Peel is a device used by estheticians and physicians, or their assistants, to perform “beautician” type services. The product literature states that the equipment is “designed specifically for the physician” while describing how a “technician” performs the Power Peel treatments. It is apparent that these devices are intended for use by medical and non-medical personnel, who may not legally use medical instruments. However, the fact that a product is aimed at a medical market does not necessarily establish the medical nature of the product for tariff purposes. HQ 955887 dated August 4, 1994, citing HQ 081639 dated August 25, 1989. The Power Peel dermoabraders are not principally used in medical practice and, therefore, are not classified as instruments used in medical science under heading 9018, HTSUS.

Protestant argues that FDA classification as a Class I medical device indicates that tariff classification as an instrument used in medical science is appropriate. However, “It is well established that statutes, regulations and administrative interpretations relating to ‘other than tariff purposes’ are not determinative of Customs classification disputes.” Amersham Corp. v. United States, 5 CIT 49, 56 (1983). Articles are classified by the FDA to protect public safety, not as guidance to Customs classification. HQ 085064 dated August 24, 1990. See also, HQ 962181 dated January 13, 1999.

Customs classified the Power Peel System, at liquidation, as a vacuum pump described eo nomine in subheading 8414.10.00, HTSUS. This classification is in error, since the device incorporates a pump as a component, but is not itself a pump.

The Power Peel System is powered by an electrical motor. It also utilizes a vacuum pump and operates by physically abrading the skin with aluminum oxide crystals. Therefore, these devices operate mechanically and fall under heading 8479, HTSUS, which provides for machines and mechanical appliances having individual functions, and are not covered more specifically by a heading in any other Chapter of the Nomenclature. See EN 84.79.

Since the Power Peel System incorporates mechanical features that are not subsidiary to the electrical function of the machine, it is more specifically described as mechanical than electrical and does not fall under heading 8543, HTSUS. See EN 85.43.

We did not receive sufficient information on the parts, which accompanied these dermabrasion systems, to be able to classify them. These parts are not covered under the subheading 8479.89.97, HTSUS, which provides for machines and mechanical appliances, but not the parts thereof.

HOLDING:

Power Peel Microdermabrasion Systems are classified under subheading 8479.89.97, HTSUS, which provides for: Machines and mechanical appliances having individual functions, not specified or included elsewhere in this chapter; parts thereof: Other machines and mechanical appliances: Other: Other; Other.

Protest 1303-00-100003 should be DENIED.

In accordance with Section 3(A)(11)(b) of Customs Directive 099-3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, Notice of Action, 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 make the decision available to Customs personnel, and to the public on the Customs Home Page of the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,


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