HQ 962181

January 13, 1999

CLA-2 RR:CR:GC 962181 MGM

**CATEGORY:** CLASSIFICATION

**TARIFF NO.:**8543.89.96

Port Director

U.S. Customs Service

1624 E. 7th Ave.

Ste. 101

Tampa, FL 33605

**Re:** Protest 1801-98-100034; "Forever Free" and "Total Perfection"
Hair Removal Devices; HQ 085064

Dear Port Director:

This is our decision on protest 1801-98-100034, concerning your
classification of the "Forever Free" and "Total Perfection" hair removal
devices under the Harmonized Tariff Schedule of the United States
(HTSUS).

**FACTS:**

The subject commodities are two hair removal devices which operate by
applying an electrical current to unwanted hair. The current is applied
for a period of about fifteen minutes, then the hair is removed. The
hair removal devices do not have electric motors.

These devices are regulated by the United States Food and Drug
Administration as Class III medical devices, however they are available
for retail sale without a prescription and are not of a type used by
physicians.

The thirty-four entries whose classification is here protested were made
in April 1997 through January 1998, and liquidated in April of 1998. A
protest was timely filed on July 1, 1998.

**ISSUE:**

Whether the "Forever Free" and "Total Perfection" hair removal devices
are instruments used in medical science?

**LAW AND ANALYSIS:**

Merchandise imported into the U.S. is classified under the HTSUS. Tariff
classification is governed by the principles set forth in the General
Rules of Interpretation (GRIs) and, in the absence of special language
or context which requires otherwise, by the Additional U.S. Rules of
Interpretation. The GRIs and the Additional U.S. Rules of Interpretation
are part of the HTSUS and are to be considered statutory provisions of
law.

GRI 1 requires that classification be determined first according to the
terms of the headings of the tariff schedule and any relative section or
chapter notes and, unless otherwise required, according to the remaining
GRIs taken in order. GRI 6 requires that the classification of goods in
the subheadings of headings shall be determined according to the terms
of those subheadings, any related subheading notes and *mutatis
mutandis*, to the GRIs. In interpreting the HTSUS, the Explanatory Notes
(ENs) of the Harmonized Commodity Description and Coding System may be
utilized. The ENs, although not dispositive or legally binding, provide
a commentary on the scope of each heading, and are generally indicative
of the proper interpretation of the HTSUSA. *See,* T.D. 89‑80, 54 Fed.
Reg. 35127 (August 23, 1989).

The following headings are relevant to the classification of this
product:

8510 Shavers, hair clippings and hair-removing appliances, with
self-contained electric motor; parts thereof:

8510.30.00 Hair-removing appliances

\* \* \* \* \* \* \* \* \* \* \* \*

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

\* \* \* \* \* \* \* \* \* \* \* \*

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:

9018.90 Other instruments and appliances and parts and accessories
thereof:

Other:

Electro-medical instruments and appliances and parts and accessories
thereof:

Other:

9018.90.75 Other

Customs classified these items in heading 8510, HTSUS. However, this
heading is limited by its terms to items "with self-contained electric
motor\[s\]." The hair removal devices at issue do not have electric
motors and therefore do not fall within heading 8510, HTSUS.

The protestant entered the merchandise under heading 9018, HTSUS, as
instruments used in medical science. The Explanatory Notes (EN) state
that "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)." EN 90.18, HTSUS. Here, the devices are not of the
sort used by physicians. *Consumers Digest*, August 1998, 82. Rather,
they are used in the home for cosmetic purposes. As such, they are not
instruments used in medical science classified in heading 9018, HTSUS.

Protestant argues that FDA classification as a Class III 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]{.underline}, 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.

These devices are electrical apparati with individual functions not
elsewhere specified or included in any other heading of the tariff. They
are thus classified in heading 8543, HTSUS. Within this heading, they
are not described by any of the more specific provisions and thus fall
within the residual provision.

**HOLDING:**

You should deny the protest, except to the extent reclassification of
the merchandise as indicated above results in a partial allowance. The
"Forever Free" and "Total Perfection" hair removal devices are
classified in subheading 8543.89.96, HTSUS.

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 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 on the World Wide Web at
www.customs.ustreas.gov, by means of the Freedom of Information Act, and
other methods of public distribution.

Sincerely,

John Durant, Director

Commercial Rulings Division