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HQ 965700




August 2, 2002

CLA-2 RR:CR:GC 965700 GOB

CATEGORY: CLASSIFICATION

TARIFF NO.: 9019.10.20

Port Director
U.S. Customs Service
330 2nd Avenue South
Suite 560
Minneapolis, MN 55401

RE: Protest 3501-02-100016; Dermalife Steam Machines

Dear Port Director:

This is our decision regarding Protest 3501-02-100016, filed on behalf of Sybaritic (“protestant”), concerning the classification, under the Harmonized Tariff Schedule of the United States (“HTSUS”), of Dermalife steam machines.

FACTS:

The file reflects the following. The 10 entries at issue were filed between March 29, 2000 and November 7, 2001. The entries were liquidated on February 8, 2002. The protest was filed on April 19, 2002.

The Dermalife steam machines were entered under subheading 9019.10.20, HTSUS. The entries were liquidated under subheading 8543.89.96, HTSUS.

Material submitted with the protest describes the subject goods as follows:

Introducing Hydrofusion . . . a breakthrough discovery in skin care technology. The idea was SIMPLE . . . a concept to apply two different heat technologies simultaneously to improve skin and body care treatment results. Now, based on a cosmetic surgeon’s idea and discovery, a synergistic system combining STEAM and INFRARED HEAT has been perfected. The result is recognized as the new technology called Hydrofusion. [All emphasis in original.]

Information on the protestant’s Internet site (www.sybaritic.com) provides in pertinent part as follows:

The Dermalife Spa System combines a unique synergy of features, including steam, infrared heat, vibratory massage, aroma and herbal energy in a stunning and relaxing self-contained spa environment. The power of the Dermalife lies in Hydrofusion, an extraordinary engineering breakthrough creating a single blended energy force through the harmonization of infrared heat and steam.

Top 3 Benefits: 1. Maximizes Client Comfort 2. Keeps Client Warm During Body Wraps and Massage 3. Opens Skin Pores and Increases Circulatory Activity. Top 3 Features: 1. Hydrofusion (combination of steam and infrared heat) 2. Vibratory massage & aromatherapy 3. Self-contained, no plumbing necessary.

The treatment options are described as hydrofusion treatments, seaweed treatments, and mud treatments. Other features are aromatherapy, chromotherapy, cool face air, an ergonomically-contoured bed, portability, and vibratory massage.

The machines are 91 inches long, 37 inches wide, 33.6 inches high, and weigh 220 pounds.

ISSUE:

What is the classification under the HTSUS of the Dermalife steam machines?

LAW AND ANALYSIS:

We note initially that the protest was timely filed under the statutory and regulatory provisions for protests, 19 U.S.C. 1514(c)(3)(A) and 19 CFR 174.12(e)(1).

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRI’s”). GRI 1 provides that the classification of goods shall be determined 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, the remaining GRI’s may then be applied.

The Harmonized Commodity Description and Coding System Explanatory Notes (“EN’s”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the EN’s provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80.

The HTSUS provisions under consideration are as follows:

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

Other machines and apparatus:

8543.89 Other:

Other:

Other:

8543.89.96 Other

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 Mechano-therapy appliances and massage apparatus; parts and accessories thereof

EN 90.19 provides in pertinent part as follows:

(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).

Note 1(m) to Section XVI, HTSUS (which is comprised of Chapters 84 and 85, HTSUS) provides that Section XVI does not cover articles of Chapter 90, HTSUS. Accordingly, if the Dermalife steam machines are described in heading 9019, HTSUS, they are not classified in heading 8543, HTSUS.

Mechano-therapy and massage apparatus are specifically provided for in heading 9019, HTSUS. EN 90.19 specifically mentions massage by vibration. Customs has interpreted heading 9019, HTSUS, to include facial aesthetic devices (HQ 954181 dated February 28, 1994) and a combination of water and massage in one device (HQ 961456 dated July 23, 1998). We find that the massage and steam functions are significant enough for us to determine that such machines are described in heading 9019, HTSUS. The hydrofusion function and the massage function complement each other. Accordingly, we find that the Dermalife steam machines are described in heading 9019, HTSUS, and are classified in subheading 9019.10.20, HTSUS. Because heading 9019, HTSUS, provides a more specific description of the goods, consideration of heading 8543, HTSUS, is not necessary.

HOLDING:

The Dermalife steam machines are classified in subheading 9019.10.20, HTSUS, as: “Mechano-therapy appliances; massage apparatus . . . : Mechano-therapy appliances; massage apparatus . . .: Mechano-therapy appliances and massage apparatus . . .”

You are instructed to GRANT the protest.

In accordance with Section 3A(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, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of 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 on the World Wide Web at www.customs.treas.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Acting Director
Commercial Rulings Division

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