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HQ 960011

September 23, 1998

CLA-2 RR:CR:GC 960011 HMC


TARIFF NO.: 3924.90.55

Port Director of Customs
33 New Montgomery St., #1501
San Francisco, CA 94105

RE: Protest 2809-96-100422; Shower Massage Shower Heads; Subheadings 3922.90.00, 9019.10.20; Chapter 39, Note 2 (r); Explanatory Notes 39.24 and 90.19; Tableware, Kitchenware, Other Household Articles and Toilet Articles of Plastics; Massage Apparatus; NY 810116.

Dear Port Director:

This is our decision on Protest 2809-96-100422, filed against your classification of the Windmere's "Shower Massage" shower heads. The entries under protest were liquidated on December 29, 1995, and February 2, 1996, and this protest timely filed on March 28, 1996.


The merchandise under protest consists of a hand-held shower head (style SM-2HCP) and a wall mounted shower head (style SM3CP), made primarily of plastic with a chrome finish. Literature provided refers to the merchandise as shower massagers. The shower heads have three settings: spray, spray/massage, and pulsating massage. The spray setting is described as a concentrated, full shower spray that cleanses and refreshes from head to toe. The spray/massage setting is described as a gentle but invigorating massage to ease stress and tension plus a soothing spray to rinse/refresh. The pulsating massage setting is depicted as a brisk, stimulating massage to work out after-exercise soreness and specific tension spots. A company price list shows that the hand-held shower head has a hose and an adaptor that connects the hose to a faucet. It also shows the wall-mounted shower head by itself with no additional adaptors. The package comes with instructions for installation.

Protestant claims the merchandise is classifiable under a provision for massage apparatus under subheading 9019.10.20 of the Harmonized Tariff Schedule of the United States (HTSUS). However, the entries were liquidated under subheading 3922.90.00, HTSUS, as other baths, shower baths, washbasins, bidets, lavatory pans, seats and covers, flushing cisterns and similar sanitary ware, of plastics.

The 1995 provisions under consideration are as follows:

3922 Baths, shower baths, washbasins, bidets, lavatory pans, seats and covers, flushing cisterns and similar sanitary ware, of plastics:
3922.90.00 Other...6.3%

3924 Tableware, kitchenware, other household articles and toilet articles, of plastics:
3924.90 Other:
3924.90.55 Other...3.4%

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 Mehano-therapy appliances and massage apparatus; parts and accessories thereof...3.4%


Whether the shower heads are classifiable as massage apparatus under subheading 9019.10.20, HTSUS, as baths, shower baths, washbasins, bidets, lavatory pans, seats and covers, flushing cisterns and similar sanitary ware of plastics under subheading 3922.90.00, HTSUS, or as other household and toilet articles under subheading 3924.90.55, HTSUS.


Merchandise is classifiable under the 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.

Because the shower heads are made of plastic with a minimal amount of chrome, there is no disagreement that the plastic components, not the chrome, impart the essential character to the merchandise. Protestant contends that the shower heads are massage apparatus of subheading 9019.10.20, HTSUS, based on the premise that they are designed to help relieve stress and tension.

Chapter 39, Note 2(q), 1995 HTSUS, [currently 2(r)] states that Chapter 39 does not cover: articles of chapter 90 (for example, optical elements, spectacle frames, drawing instruments). We then need to determine if the merchandise is described by heading 9019, HTSUS.

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

General EN to Chapter 90, HTSUS, at page 1576, states, in part, that
this Chapter covers a wide variety of instruments and apparatus which are, as a rule, characterized by their finish and high precision. Most of them are used mainly for scientific purposes (laboratory research work, analysis, astronomy, etc.), for specialized technical or industrial purposes (measuring or checking, observation, etc.) or for medical purposes.

EN 90.19, at page 1617, states:


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). The latter type in particular may include interchangeable attachments
(usually of rubber) to allow various methods of application (brushes, sponges, flat or toothed discs, etc.).

This group includes simple rubber rollers or similar massaging devices. It also covers appliances for massaging the breasts, using the action of water distributed by a series of small nozzles mounted inside a form fitted over the breast, and made to revolve by a stream of water introduced through a flexible tube.

The following are also regarded as massage apparatus within the meaning of this heading: mattresses designed to prevent or treat bedsores by constantly varying the places at which the weight of the patient's body rests and also providing a superficial massage effect on tissues liable to necrosis.

The ENs indicate that a massage apparatus is one that provides massaging by friction, vibration, etc. Medical dictionaries seem to have a similar definition. Common and commercial meaning of terms may be determined by consulting dictionaries, lexicons, scientific authorities and other reliable sources. C.J. Tower & Sons v. United States, 69 CCPA 128, 673 F.2d 1268 (1982). The Dorland's Illustrated Medical Dictionary (28th ed.), at page 991-992, states that the term "massage" is the systematic therapeutic friction, stroking, and kneading of the body. Citing The American Heritage Dictionary, New College Edition, The Court of International Trade (CIT) found that the term "therapeutic" means "having healing or curative powers." See Richards Medical Co. v. United States, 13 CIT 519, 521, 720 F. Supp. 998, (1989), aff'd, 910 F.2d 828 (Fed. Cir. 1990). The Court further determined that it is necessary to establish a healing and curative purpose of a particular medical procedure in order for an article to qualify as therapeutic. See Richards Medical Co. v. United States, 13 CIT at 521. It is Customs view that the massage apparatus of heading 9019, HTSUS, must provide a therapeutic benefit.

Protestant cites HQ 957383, dated January 30, 1995, and NY 871935, dated March 25, 1992, to support its classification of shower heads as massage apparatus. NY 871935 involved the classification of a Whirlpool Bathing System that provided therapeutic bathing and whirlpool hydromassage for geriatric/disabled patients. It included a lift for transport in and out of the tub. The merchandise in that ruling was considered curative medical equipment and Customs classified it under subheading 9019.10.20, HTSUS, as massage apparatus. HQ 957383 involved the classification of jetted baths and whirlpool spas for domestic use. Customs determined that "domestic-use" tub/hydromassage units, like the "institutional" tub/hydromassage units of NY 871935, are classified under subheading 9019.10.20, HTSUS.

The shower heads are clearly distinguishable from tub/hydromassage units. HQ 957383 and NY 871935 refer to merchandise that produced therapeutic benefits to the user. The literature submitted states that the shower heads help relieve stress and tension. This, we find, does not satisfy the definitions advanced by the ENs and the Courts. There is no evidence that the shower heads give a therapeutic massage. Thus, the subject merchandise is not described by heading 9019, HTSUS. Accordingly, we must now determine whether the shower heads are described by headings 3922 or 3924, HTSUS.

Heading 3922, HTSUS, provides for baths, shower-baths, wash-basins, bidets, lavatory pans, seats and covers, flushing cisterns and similar sanitary ware of plastics. The shower heads are not like any of the items described by this heading. EN 39.24, at page 621, states that heading 3924 includes

[t]oilet articles (whether for domestic or non-domestic use) such as toilet sets (ewers, bowls, etc.), sanitary pails, bed pans, urinals, chamber-pots, spittoons, douche cans, eye baths; soap dishes, towel rails, tooth-brush holders, toilet paper holders, towel hooks and similar articles for bathrooms, toilets or kitchens, not intended for permanent installation in or on walls. However, such articles intended for permanent installation in or on walls or other parts of buildings (e.g., by screws, nails, bolts or adhesives) are excluded (heading 39.25).

In this instance, the evidence presented illustrates that the shower heads are easily connected to a faucet or shower pipe and do not have the character of being fixtures for permanent installation in or on walls. Moreover, we note NY 810116, dated May 24, 1995, that classified similar shower heads under subheading 3924.90.55, HTSUS. We therefore conclude that the merchandise is described by heading 3924, HTSUS.


Under the authority of GRI 1, the shower heads are classifiable in subheading 3924.90.55, HTSUS, as "Tableware, kitchenware, other household articles and toilet articles, of plastics: Other: Other. The 1995 rate of duty is 3.4%.

This protest should be GRANTED. 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.


John Durant, Director
Commercial Rulings Division

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