HQ 086040: Protest No. 3501-8-000064 of July 26, 1988 and request forfurther review filed by Minnesota Mining and Manufacturing Co.,St. Paul Minnesota

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                           HQ 086040

                        December 7, 1989

CLA-2 CO:R:C:G  086040  MBR

CATEGORY:  Classification

TARIFF NO.:  688.42

District Director of Customs
U.S. Customs Service
U.S. Courthouse, Room 137
110 South Fourth Street
Minneapolis, Minnesota 55401

RE:  Protest No. 3501-8-000064 of July 26, 1988 and request for
further review filed by Minnesota Mining and Manufacturing Co.,
St. Paul Minnesota

Dear Sir:

     Protest and request for further review were timely filed
against your liquidation of entry numbers 110-1996288 and 110-
1996349 covering shipments of "Tenzcare 6848" electric
stimulators.

FACTS:

     The "Tenzcare" stimulator is a device used by individuals to
relieve pain by electrically stimulating nerves.  The stimulator
is believed to work by either blocking the pain signal from being
transmitted to the brain or by activating the production of
endorphins in the brain, which act as pain suppressors.

     The device is regulated by the Food and Drug Administration
and can only be acquired through a doctor's prescription.

ISSUE:

     Whether the "Tenzcare 6848" is classifiable as medical
therapeutic apparatus under item 709.17 or as other electrical
articles under item 688.42, under the Tariff Schedules of the
United States (TSUS)?

LAW AND ANALYSIS:

     The importer argues that the FDA classifies the "Tenzcare
6848" as a medical device, therefore, so too, should U.S.
Customs.  However, interpretations under laws other than those
relating to tariff classification are not determinative of duty
assessment questions.  See Amersham Corporation v. United States,
564 F.Supp. 813 (Ct. Int'l Trade 1983).

     Item 709.27, governing medical therapeutic apparatus, is a
use provision and, as such, classification thereunder is
determined by chief use.  See e.g., Schick X-Ray Co., Inc. v.
United States, 62 Cust. Ct. 97, 100, C.D. 3689, 295 F. Supp. 302
(1969).  In turn, chief use for tariff schedule purposes is
defined in Rule 10(e) of the General Headnotes and Rules of
Interpretation of the schedules, as follows:

     10.  General Interpretive Rules.  For the purposes of
     these schedules-
*    *    *    *    *    *    *    *    *    *    *    *    *
       (e)  in the absence of special language or context
       which otherwise requires-
          (i)  a tariff classification controlled by
          use (other than actual use) is to be
          determined in accordance with the use in the
          United States at, or immediately prior to,
          the date of importation, of articles of that
          class or kind to which the imported articles
          belong and the controlling use is the chief
          use, i.e. the use which exceeds all other
          uses (if any) combined;

     It has been our position that he tariff provision for
"medical instruments" includes only instruments and apparatus
which are used in the professional practice of medicine for the
diagnosis, prevention, or treatment of diseases.  There is no
evidence to suggest that the "Tenzcare 6848" electrical
stimulators are used chiefly in the professional practice of
medicine.  In fact, quite to the contrary, the importer has
stated that the doctor merely writes a prescription for the
device and it is the patients themselves who actually utilize
these devices.

     Therefore, the "Tenzcare 6848" is appropriately classifiable
under item 688.42, TSUS, which provides for electrical articles:
other.

HOLDING:

     The "Tenzcare 6848" is classifiable under item 688.42,
which provides for electrical articles: other.  Therefore, you
should deny this protest in full.  A copy of this decision should
be forwarded to the Minnesota Mining and Manufacturing Co.

                              Sincerely,



                              John Durant, Director
                              Commercial Rulings Division