HQ 085064: Decision on Application for Further Review of Protest No. 2704-8-002494.

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 085064

                                   August 24, 1990



          CLA-2:CO:R:C:G  085064  SR

          CATEGORY:  Classification

          TARIFF NO.:  688.42

          District Director of Customs
          300 N. Los Angeles Street
          Los Angeles, California 90012

          RE:  Decision on Application for Further Review of
                Protest No. 2704-8-002494.

          Dear Sir:

               This protest was filed against your decision in the
          liquidation on June 10, 1988, of entry number 110-0288073-7,
          dated April 29, 1988, covering a shipment of Tenzcare
          stimulators.

          FACTS:

               The merchandise at issue is the Tenzcare stimulator.  It is
          an electrical device which relieves pain through the use of
          electrical nerve stimulation.  It is believed to work by either
          blocking, by electrical stimulation, the pain signal from being
          carried by the nerve to the brain, or by activating the body's
          mechanism which activates the production of endomorphins in the
          brain which act as pain suppressors.  The device is regulated by
          the Food and Drug Administration and is available to the patient
          only by means of a doctor's prescription.  After receiving the
          prescription, the patient purchases or leases the unit from a
          medical equipment dealer.  The use of the device is coordinated
          under the doctor's review.

          ISSUE:

               Whether the merchandise at issue is classifiable as a
          medical electrical therapeutic device.















                                         -2-

          LAW AND ANALYSIS:

               Item 709.17, TSUS, provides for medical instruments and
          apparatus (including electro-medical apparatus and ophthalmic
          instruments), and parts thereof, electro-medical apparatus, and
          parts thereof, other, other.  Item 688.42, TSUS, provides for
          electrical articles and parts of articles, not specially provided
          for, other, other.

               The Tenzcare is not classifiable as a medical instrument or
          apparatus.  It is not used in a professional practice for
          diagnosis, prevention or treatment of diseases, the correction of
          deformities and defects, or the repair of injuries.  The Tenzcare
          is used by the patient at home, it is not used in the doctor's
          office.

               The fact that Tenzcare is classified as a medical device by
          the FDA has no binding effect on classification by Customs.  "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, 5 CIT 49 at p. 56 (1983).  Articles are
          classified by the FDA to protect public safety, not as guidance
          to customs classification.

               Headquarters Ruling Letter 075124 dated June 14, 1985, dealt
          with arm slings that were classified as a prosthetic article by
          the FDA.  Customs ruled that these slings were not classifiable
          as orthopedic devices or prosthetic articles under item 709,
          TSUS, even though they were classified as such by the FDA.

          HOLDING:

               The merchandise at issue is classifiable under item 688.42,
          TSUS, which provides for electrical articles not specially
          provided for, other, other, other.

          The protest should be denied.  A copy of this decision should be
          attached to the Form 19 Notice of Action to satisfy the notice























                                         -3-

          requirement of section 174.30(a), Customs Regulations.

                                             Sincerely,




                                             John Durant, Director
                                             Commercial Rulings Division