HQ 957290: Thermoplastic Shells for Swimspas

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 957290

                           May 31, 1995

CLA-2 R:C:F  957290  ALS

CATEGORY:  Classification

TARIFF NO.:  3924.90.5500

Mr. Al Roser
Roser Customs Service, Inc.
P.O. Box 48
Brownsville, TX 78520

RE:  Thermoplastic Shells for Swimspas

Dear Mr. Roser:

     This is in reference your inquiry about the subject product
which was referred to this office for reply.  Descriptive
literature of the retail product was furnished with your request.

FACTS:

     The article under consideration is a fiberglass reinforced
thermoplastic shells which form the base of swimspas (also swim
spas).  The shells are fabricated in Mexico from plastics
material manufactured in the United States.  Subsequent to
importation the product retailer may add large swim jets, small
whirlpool jets, heaters or any combination of the above or none
of the above, depending on the desires of the retail consumer. 
All of the items which are added to the swimspas shells
subsequent to importation are of U.S. manufacture and are not
imported in kit form with the plastic shells.  The product comes
in various sizes and in some cases the plastic shells, while a
single unit, may be divided into two portions with the larger
"pool" portion being considerably larger than the "spa" portion
thereof.  For example, in a 19 foot combination unit the pool
portion occupies 14 feet thereof, in a 16 foot combination unit
the pool portion occupies 11+ feet thereof.  These units have a
uniform nominal width of 7 feet 6 inches.  The product is
designed for situations where space limitations or local
regulations prohibit the installation of a larger facility.  The
products are sold primarily for use in proximity to the user's
house.  The plastic shells, after the drilling of holes and the
installation of swim jets, whirlpool jets, heaters, or other
equipment, may be used for its ultimate intended purpose.                                - 2 -

According to the advertising literature, when the swim jets are
installed, these shells are converted into "a challenging workout
area for swimming, aquajogging and exercising."  While such
literature indicates that when water is heated the user is placed
in a "relaxed atmosphere" there are no other uses, e.g.,
therapeutic massage or health benefits, specified, nor is there
any indication as to the function of small whirlpool jets that
may be added by the retailer at the time of retail sale.   

ISSUE:

     What is the classification of the subject product?

LAW AND ANALYSIS:

     Classification of merchandise under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA) is governed by
the General Rules of Interpretation (GRI's).  GRI 1 provides that
the classification is determined first in accordance with the
terms of the headings and any relative section and chapter notes.
If GRI 1 fails to classify the goods and if the heading and legal
notes do not otherwise require, the remaining GRI's are applied,
taken in order. 

     We initially understood that the products being imported
were completed swimspas ready for use.  In other words, they were
complete (containing all the plumbing, jets, heaters, etc.),
except for installation in an above the ground or in-ground
environment.  Based thereon, we considered whether the product
would be classifiable in subheading 9506.99.5500, HTSUSA, as a
swimming pool, since one can, if the water jets are on, engage in
a swimming activity as one would do in an in the ground or an
above the ground swimming pool.  Neither that subheading nor the
Explanatory Notes (EN) relative to that subheading, representing
the views of the international classification experts, contain
any comment as to the scope of that subheading.  

     Since the EN do not provide any guidance as to the scope of
that tariff provision, we contacted industry sources to ascertain
how the swimspas are treated by the trade.  Those sources advised
us that a swimming pool normally contains still water and that,
while it was possible to have jets installed in an above the
ground pool, a swimming pool does not normally contain swim jets. 
The sources further advised us that these items are known as
swimspas in the trade and that they are not marketed as swimming
pools.  These sources also noted that swimming pools contain
still water.  The  sources indicated that the addition of swim
jets or other water enhancing equipment to an article containing
a large quantity of water, which might be considered a                               - 3 -

swimming pool, would take these articles out of that category. 
The National Pool and Spa Institute confirmed this and advised us
that a small swimming pool is generally considered to be at least
15 x 36 feet.  In addition, such Institute has advised us the
jets in these types of units are to be distinguished from those
in swimming pools.  The jets in spas mix water and air while
those in swimming pools merely recirculate water that has pumped
through a pools filtration system.  Further, while a user of a
spa with swim jets is going through motions similar to swimming,
that individual is not actually moving.  The user is "swimming"
in place against the pressure created by the swim jets.  The
industry sources do not consider these items to be swimming
pools.  The relationship between a swimspa and a swimming pool
would appear to be similar to the relationship between a
treadmill and a track.  While the user of both of those items
might be going through a similar motion, we would not call a
treadmill a track.

     We noted that spas, also known as jacuzzis or whirlpools, or
hot tubs, have been historically classified in subheading
3922.90.0000, HTSUSA, which provides for baths, showerbaths...and
similar sanitary ware, of plastics, other.  Although Headquarters
Ruling Letter (HRL) 078579 of April 29, 1987, to this same
importer, then known by another name, held that the same or
essentially similar product was classifiable in item 772.15,
Tariff Schedules of the United States Annotated (TSUSA), our
current review of the documentation of record with that ruling,
confirms that that decision was based on our understanding that
the completed article, ready for installation and use, was being
imported.  We have recently confirmed that the article then being
imported as well as the current article consist only of the
plastic shell or tub.  They do not contain the appropriate
plumbing nor are they so prepared as to be dedicated to a
particular use until after importation when the holes for the
swim jets, whirlpool jets, heater, etc., are added to the shell. 

     HRL 064405, dated February 12, 1981, which concerned a
similar plastic shell, held that it was classifiable under the
provision for articles not specially provided for of reinforced
plastics in item 770.10, TSUSA.  Further, in New York Ruling
Letter (NYRL) 839530 of May 1, 1989, a similar product,
specifically noted to have whirlpool jets, plastic pump and motor
with an in-line electric heater, etc., was classified under the
provision for household articles of plastics since it was used in
or about a house.  Another ruling, NYRL 896367, dated April 26,
1994, held that a similar plastic shell with holes drilled
therein prior to importation for the installation of waters jets
subsequent to importation, were classifiable in subheading
3922.90.0000, HTSUSA.  We believe that the article under                               - 4 -

consideration, a plastic shell, is most similar to that in 
HRL 064405, i.e., articles not specially provided for wholly or
almost wholly of reinforced...plastics.       

     While the articles under consideration, once the plumbing,
electrical, and other components are added to them subsequent to
importation, have some properties similar to mechano-therapy or
hydromassage units classifiable in subheading 9019.10, HTSUSA,
there is no indication that the completed items are designed or
marketed for the purposes specified in subheading 9019.10,
HTSUSA.  They are intended for recreational and fitness purposes.
Even if certain of the completed articles might serve the
purposes noted in the referenced subheading, that conclusion
would depend on the nature of the equipment which would be added
to the plastic shells subsequent to importation and could not be
ascertained when the imported article arrives in the United
States.  The tariff classification and dutiable status of the
product must be ascertained based on its condition at the time of
importation.

HOLDING:

     Large fiberglass reinforced plastic shells which, subsequent
to importation, will be made into swimspas, whirlpool units, or
similar units by the drilling of holes and the installation of
swim jets, whirlpool jets, heaters, etc., so as to permit the
user thereof to swim in place, to jog in place or exercise, where
space or local regulations do not permit the installation of a
full size swimming pool, are classifiable in subheading
3922.90.0000, HTSUSA, which provides for baths, shower
baths,...and similar sanitary ware, of plastics, other.  Articles
so classified are subject to a general rate of duty of 6.3
percent ad valorem.

                              Sincerely,



                              John Durant, Director
                              Commercial Rulings Division