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HQ 956894


NOVEMBER 2, 1994

CLA-2:CO:R:C:M 956894 JAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 8306.30.00

District Director of Customs
300 S. Ferry Street, Rm. 1001
Terminal Island, CA 90731

RE: PRD 2720-94-100204; Mirror for Airplane Lavatory, Heading 8306; HQ 953138, Section XV, Note 1(h); Parts of Airplanes or Helicopters, Subheading 8803.30.00, Civil Aircraft Agreement (CAA), Section XVII, Note 2(d), Prisms, Mirrors and Other Optical Elements, 9001.90.60, Chapter 90, Note 1(d)

Dear Sir:

This is our decision on Protest 2702-94-100204 filed against your classification of certain aircraft lavatory mirrors from Japan. The entry was liquidated on November 26, 1993, and this protest timely filed on February 17, 1994.

FACTS:

The merchandise in issue is an aircraft lavatory mirror assembly, designated part MD 014220-501. The mirror stock, represented by a submitted sample measuring 6 inches x 4 1/4 inches, is a composite material designated A-Look EX. It consists of a butadiene/polyethylene plastic material laminated between two sheets of aluminum, each with an outer layer of nickel. Both the front and back surfaces are reflective but the decorative side has an electroplated layer and a fluoride resin coating. A Customs laboratory analysis confirmed the nickel- aluminum metal constitutes 54 percent, by weight, and the plastic material 46 percent by weight.

The merchandise was entered under a duty-free provision in heading 8803, for parts of airplanes and helicopters. Alternatively, protestant maintains the mirror is provided for in heading 9001 as mirrors and other optical elements, unmounted. Merchandise classifiable in this provision is free of duty under the Civil Aircraft Agreement (CAA). The concerned import specialist classified the mirror under a provision in heading 8306 for mirrors of base metal. - 2 -

The provisions under consideration are as follows:

8306 [m]irrors of base metal:

8306.30.00 [m]irrors...5.3 percent

8803 Parts of goods of heading 8801 or 8802:

8803.30.00 Other parts of airplanes or helicopters ...Free

9001 [l]enses...prisms, mirrors and other optical elements, of any material, unmounted...:

9001.90 Other:

9001.90.60 Mirrors...8 percent (Free under CAA)

ISSUE:

Whether the aircraft mirror is a base metal article; whether it is an optical element.

LAW AND ANALYSIS:

Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (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.

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

Initially, we have previously ruled that the A-Look EX material is a composite good with the aluminum-nickel alloy [a base metal] imparting the essential character. Therefore, the article in issue is considered "of base metal" for tariff purposes and is provided for in heading 8306, unless otherwise excluded. HQ 953138, dated March 18, 1993.

The heading 8803 classification cannot prevail if either heading 8306 or heading 9001 applies. Section XVII, Note 2(d) and (g), HTSUS. Also, mirrors of base metal that are not optical elements are excluded from Chapter 90. Chapter 90, Note 1(d), HTSUS. The issue, then, is whether the mirror in issue is an optical element of Chapter 90. Protestant maintains the mirror is an optical element because the required optical property of the mirror is reflection. The term "optically worked" is defined in the Additional U.S. Notes to Chapter 90. However, while the term "optical element" is not defined in the legal notes, there are two references to the term in the Explanatory Notes as it relates to both mounted and unmounted mirrors. The first is a reference in the ENs at p. 1459, which includes in heading 90.01 Mirrors constituting optical elements (emphasis original). These are used, for example, in telescopes, projectors, microscopes, medical, dental or surgical instruments, and sometimes as vehicle rear-view mirrors. Again, ENs at p. 1461 include in heading 90.02 mounted mirrors for telescopes, projectors, microscopes, medical or surgical instruments, etc.

These notes suggest to us that the mirrors which are optical elements of heading 9001 are those which utilize light of varying wavelengths for purposes of magnification, clarification or other forms of image enhancement. We do not consider mirrors which form images by simple reflection as optical elements for purposes of heading 9001.

HOLDING:

Under the authority of GRI 1, the mirror assemblies in issue are mirrors of base metal of heading 8306. They are classifiable in subheading 8306.30.00.

The protest should be DENIED. 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 - 4 -
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Sincerely,

John Durant, Director
Commercial Rulings Division


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