HQ 0088233 - Protest and Request for Further Review 2704-90-001904, dated May 7, 1990; lighted make-up mirror; curling iron; composite good with essential character imparted by the mirror; set put up for retail sale with the essential character imparted by the make-up mirror - United States International Trade Commision Rulings

United States International Trade Commision Rulings And Harmonized Tariff Schedule

faqs.org Rulings By Number Rulings By Category Tariff Numbers

faqs.org > Rulings and Tariffs Home > Rulings By Number > 1994 HQ Rulings > HQ 0000608 - HQ 0088731 > HQ 0088233

HQ 088233

May 1, 1991

CLA-2 CO:R:C:M 088233 JMH

CATEGORY: CLASSIFICATION

TARIFF NO.: 7009.92.10

District Director
U.S. Customs Service
Suite 1001
300 South Ferry St. Terminal Island
San Pedro, CA 90731

RE: Protest and Request for Further Review 2704-90-001904, dated May 7, 1990; lighted make-up mirror; curling iron; composite good with essential character imparted by the mirror; set put up for retail sale with the essential character imparted by the make-up mirror

Dear Sir:

The following is our decision regarding the Protest and Request for Further Review No. 2704-90-001904, dated May 7, 1990. At issue is the classification of certain make-up mirror and curling irons.

FACTS:

The articles in question are two models of two sided, swivel, illuminated, framed mirrors with an electrical outlet (hereafter "illuminating reflecting article") and a curling iron. Each model of the illuminating reflecting articles are imported separately and one model is occasionally imported packaged with a curling iron.

The illuminating reflecting articles consist of a plastic case or frame which incorporates a swivel mirror, fluorescent lights, a color filter, an electrical outlet, and a polarized safety plug. The swivel mirror is an ordinary mirror on one side and a magnified mirror on the reverse side. The fluorescent lights are placed on both sides of the plastic case or frame. The color filter adjusts by turning a dial. The filter allows the lights to simulate daylight (direct and indirect natural sunlight), home lighting (warm incandescent lighting and filtered sunlight), office lighting (fluorescent lighting), and evening lighting (amber lighting). The various lighting effects enable a person to perform personal grooming, make-up and hairstyling, that will look its best in the proper lighting. The electrical
outlet is a standard 100AV female plug located on the lower left side of the plastic case/frame. The outlet can accommodate an electrical appliance which does not require more than 1400 watts.

The curling iron is a standard curling iron. Once the curling iron is plugged in to a power source the metal prongs will heat up. Hair is then rolled around the prongs and held momentarily. When the hair is removed from the prongs it retains a curl.

Upon importation, the port of Los Angeles classified the illuminating reflecting articles in subheading 7009.92.10, Harmonized Tariff Schedule of the United States Annotated ("HTSUSA"), as "Glass mirrors, whether or not framed, including rear-view mirrors... Framed...Not over 929 cm2 in reflecting area..." The illuminating reflecting article imported with a curling iron was determined to be a set. The essential character of the set was found to be imparted by the mirror. The illuminating reflecting article and curling iron set was classified under subheading 7009.92.10.

The importer contends that the illuminating reflecting articles are properly classified under subheading 8543.80.90, HTSUSA, as "Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter; parts thereof... Other machines and apparatus...Other..." Alternatively, the importer argues that the make-up mirror should be classified under subheading 9405.40.80, HTSUSA, as "Lamps and lighting fittings including searchlights and spotlights and parts thereof, not elsewhere specified or included..."

The importer argues in their submission that when the curling iron and illuminating reflecting article are imported together that the curling iron retains its individual identity and is properly classified in subheading 8516.32.00 HTSUSA, as "...electrothermic hairdressing apparatus (for example, hair dryers, hair curlers, curling tong heaters)... Electrothermic hairdressing or hand-drying apparatus...Other hairdressing apparatus..."

ISSUE:

Issue 1: Whether the illuminating reflecting articles are mirrors under heading 7009, are electrical machines not specified elsewhere in the tariff under heading 8543, or are lamps under heading 7405.

Issue 2: Whether the illuminating reflecting article imported with the curling iron are a set and classified together or whether the articles are separately classified.

LAW AND ANALYSIS:

Issue 1: Whether the illuminating reflecting articles are mirrors under heading 7009, are electrical machines not specified elsewhere in the tariff under heading 8543, or are lamps under heading 9405.

The classification of merchandise under the HTSUSA is governed by the General Rules of Interpretation ("GRIs"). GRI 1, HTSUSA, 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...according ..to the following provisions."

The illuminating reflecting articles in question are mirrors with a frame, are electrical apparatus, and are articles which provide illumination. The terms of the headings which provide for these articles, headings 7009, 8543, and 9405, describe the following:

7009 Glass mirrors, whether or not framed, including rear-view mirrors...

8543 Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter; parts thereof...

9405 Lamps and lighting fittings including searchlights and spotlights and parts thereof, not elsewhere specified or included...

Along with the terms of the headings, the section and chapter notes must be examined. The only applicable tariff note is Chapter 70, Note l(e), HTSUSA. Chapter 70, Note l(e) excludes lamps or lighting fittings of heading 9405 from classification within chapter 70. Thus, if the make-up mirrors in question are lamps or lighting fittings of heading 9405, they cannot be classified in chapter 70.

The terms of each of the above headings describe a portion of the illuminating reflecting articles. The illuminating reflecting articles consist of a mirror in a plastic frame, electrical wiring and components, and lamps with their fittings.

Since the make-up mirrors are classifiable under two or more headings, GRI 3, HTSUSA, must be used. GRI 3 is one of "the following provisions" mentioned in GRI 1.

GRI 3(a) states that when two or more headings describe a product, the heading which provides the most specific description is preferred. However, when two or more headings each refer to only a part of the components or materials of a composite good then the headings are equally specific. A composite good is a good made up of different components which may be attached to one another to form a practically inseparable whole, or it may consist of separable components if the components are adapted so to be mutually complementary and the components form a whole which would not normally be offered for sale in separate parts. Explanatory Note (3)(b)(IX), Vol. 1, Harmonized Commodity Description and Coding System ("HCDCS"), p. 4. The Explanatory Notes, although not dispositive, are to be looked to for the proper interpretation of the HTSUSA. 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The illuminating reflecting articles are composite goods. The components of the lighted units -- the swivel mirror, fluorescent lights, color filter, electrical outlet, and polarized safety plug -- are practically inseparable. Any separability of the components would only occur in order to replace light bulbs or other parts that may wear out. The components of the make-up mirror are not usually sold separately and are adapted to be mutually complementary. Thus, the illuminating reflecting articles meet either test for a composite good.

As a composite good under GRI 3(a) the headings in contention are equally specific. Therefore, GRI 3(b), HTSUSA, must be utilized. GRI 3(b) requires that composite goods are to be classified according to the component which gives the good its essential character. The factors which determine essential character will vary between different goods. Explanatory Note GRI 3(b)(VIII), Vol. 1, HCDCS, p. 4.

It is the opinion of this office that the mirror imparts the essential character of the illuminating reflecting articles. The importer believes that since the mirrors comprise only a small percentage of the costs of both models that the mirrors cannot be the component which imparts the items essential character. However, cost is only one factor to be considered. When marketed to customers the models are advertised and sold as a "make-up mirror." Individuals who purchase this product are purchasing an item which will reflect their image. That the buyer's image may be reflected as it would appear in various lighting conditions is an extra feature. An individual wishing to purchase a product to illuminate a room would not purchase this
make-up mirror. Nor would the same individual purchase a make- up mirror simply for its electrical abilities. The illumination functions which are supplied by the electrical and filtering components simply distinguish this mirror from others in the marketplace. The make-up mirrors' essential character is provided by the swivel mirror.

Since the essential character of the illuminating reflecting articles in guestion is imparted by their mirror, they are classified as mirrors. In accordance with GRI 3(b) and GRI 1, heading 7009 describes the illuminating reflecting articles. The proper classification for the make-up mirror is subheading 7009.92.10, HTSUSA, as "Glass mirrors, whether or not framed, including rear-view mirrors... Framed...Not over 929 cm2 in reflecting area..."

Issue 2: Whether the illuminating reflecting article and curling iron imported together are a set and classified together or whether the articles are separately classified.

The importer contends that the curling iron in question is classified in subheading 8516.32.00 HTSUSA, as "...electrothermic hairdressing apparatus (for example, hair dryers, hair curlers, curling tong heaters)... Electrothermic hairdressing or hand- drying apparatus...Other hairdressing apparatus..." We agree that this is the proper classification for a curling iron when it is imported separately. However, this office does not agree that this is the classification when the curling iron is packaged and imported with the make-up mirror.

As stated previously, the classification of merchandise is governed by the GRIs. An imported item that is classifiable in t wo or more headings must be classified under GRI 3. When the illuminating reflecting article, determined above to be a make-up mirror, and curling iron are imported together the items are 0classified in two headings. Heading 7009 applies to the make-up mirror, and heading 8516, HTSUSA, applies to the curling iron. Thus, GRI 3 is implemented.

GRI 3(a) requires that the most specific heading is preferred. However, GRI 3(a) also states that if the applicable headings refer to only a part of items in a set put up for retail sale, then the headings are considered to be equally specific. To determine what is a "set put up for retail sale" the Explanatory Notes must again be utilized. The Explanatory Note for Rule 3(b) provides a three part test for "goods put up in sets for retail sale." Explanatory Note 3(b)(X), Vol. 1, HCDCS, p. 4. This note states the following:

"For the purposes of this Rule, the term 'goods put up in sets for retail sale' shall be taken to mean goods which:

(a) consist of at least two different articles which are prima facie, classifiable in different headings.
(b) consist of products or articles put up together to meet a particular need or carry out a specific activity; and
(c) are put up in a manner suitable for sale directly to users without repacking (e.g., in boxes or cases or on boards)." (emphasis added)

Since these three steps are listed in the conjunctive, all three must be met. First, the make-up mirror and curling iron are different articles, classifiable within different headings. Secondly, they are put together to meet the particular need or specific activity of personal grooming or hair styling. Personal hair styling requires a mirror so that the stylist may see what he or she is doing. Furthermore, the mirror is designed with a special electrical plug to accommodate the curling iron. This evidences the performance together of an activity. Finally, the items are packaged together for sale directly to users without further packing. Therefore, the make-up mirror and curling iron are a "set" within the meaning of GRI 3(b), HTSUSA.

The classification of sets under GRI 3(b) is determined by the item which gives the set its "essential character." This office agrees that the make-up mirror gives the set in question its essential character. The make-up mirror provides the greatest value to the set, and it is the make-up mirror which is the basis of the set. The curling iron is only an additional attraction to entice the consumer to purchase the make-up mirror. Therefore, the make-up mirror set is classifiable under heading 7009. The proper classification for the make-up mirror and curling iron when imported together is subheading 7009.92.10, HTSUSA, as "Glass mirrors, whether or not framed, including rear- view mirrors... Framed...Not over 929 cm2 in reflecting area..."

HOLDING:

The two models of two sided, swivel, illuminated, framed mirrors with an electrical outlet are composite goods under GRI 3(a). As composite goods the illuminated reflecting articles must be classified according to the components which impart the articles' essential character. The mirror provides the illuminated reflecting articles' essential character. Thus, as make-up mirrors, the articles are described by heading 7009, in accordance with GRI 1 and GRI 3(b). The proper classification
for the make-up mirrors is subheading 7009.92.10, HTSUSA, as "Glass mirrors, whether or not framed, including rear-view mirrors... Framed...Not over 929 cm2 in reflecting area..."

The make-up mirror packaged and imported with the curling iron is a set put up for retail sale in accordance with GRI 3(a). As a set, the make-up mirror and curling iron combination is classified according to the item which gives the set its essential character. The make-up mirror, as the prominent article of the set imparts the set~s essential character. The make-up mirror and curling iron set are classified under the classification for the mirror, in accord with GRI 3(b) and GRI 1. The proper classification for the set is subheading 7009.92.10, HTSUSA, as "Glass mirrors, whether or not framed, including rear- view mirrors... Framed...Not over 929 cm2 in reflecting area..."

The protest should be denied in full. A copy of this decision should be attached to the Form 19 Notice of Action for the protest.

Sincerely,

John Durant, Director
Commercial Rulings Division

Previous Ruling Next Ruling

See also: