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HQ 954181




February 28, 1994

CLA-2 CO:R:C:M 954181 RFA

CATEGORY: CLASSIFICATION

TARIFF NO.: 9019.10.20

Mr. Vean J. Gregg, III
Tosho U.S.A. Co., Ltd.
3-7-10 Shimomeguro, 6th Floor
Meguro-ku, Tokyo 153 Japan

RE: Facial Esthetic Device; Multi-functional Device; Electro- mechanical Device; Massage Apparatus; Vaporizer; Electron Discharger; Vacuum Cleanser; Essential Character; headings 8509, 8516, 8543, and 9019; GRI 3(c)

Dear Mr. Gregg:

This is in response to your letter dated May 7, 1993, requesting the tariff classification of facial esthetic devices under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

According to the literature you have furnished, the merchandise is described as multi-function facial esthetic devices, models TDL-211 and TDL-212. The facial esthetic device model TDL-212 consist of: a Tesla function which maximizes electron discharge to reduce accumulations of potentially damaging compounds; a Patting function which conditions muscles and improves circulation by means of electronic massage; a mirror; an A/C cord; a control panel; and a timer.

The facial esthetic device model TDL-211 consists of all the functions of the TDL-212 as well as the following: a Vaporizer which produces steam; a cleansing function which cleans the epidermal layer of the skin by functioning like a vacuum; and a CH (cool/warm) Plate which utilizes temperature variance to induce expansions and contractions of the muscles below the skin.

ISSUE:

What is the essential character of the multi-function facial esthetic devices under the HTSUS?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes.

In your letter, you indicate that both models of the facial esthetic devices, which have multi-functions, are to be used in a program of beauty care. The TDL-212 contains the Tesla function and the patting device. It is prima facie classifiable under heading 8543, HTSUS, which provides for electrical machines and apparatus, not specified elsewhere [the Tesla function], and under heading 9019, HTSUS which provides for massage apparatus [the patting device].

The TDL-211, contains the functions of the TDL-212 as well as a vaporizer, a cleanser and the CH plate. It is prima facie classifiable under: heading 8509, HTSUS, which provides for electro-mechanical domestic appliances [the cleanser]; heading 8516, HTSUS, which provides for electric instantaneous or storage water heaters, other electrothermic appliances [the vaporizer and the CH plate]; heading 8543, HTSUS; and heading 9019, HTSUS.

Because classification in a single heading cannot be determined by applying GRI 1, we must apply the other GRI's. GRI 2(a) is not applicable here because the merchandise is not incomplete or unfinished. GRI 2(b) states that if a product is a mixture or combination of materials or substances that are, prima facie, classifiable in two or more headings, then GRI 3 applies.

GRI 3(a) states that if a product is classifiable in two or more headings by application of GRI 2(b), then the
heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.

Because the facial esthetic devices fall under separate headings in the tariff schedule which describe only a portion of its function, the headings are to be regarded as equally specific under GRI 3(a). Therefore, GRI 3(a) fails in establishing classification, and GRI 3(b) becomes applicable.

GRI 3(b) provides that composite goods consisting of different materials or made up of different components, shall be classified as if they consisted of the material or component which gives them their essential character.

The Harmonized Commodity Description and Coding System Explanatory Notes (EN) constitute the Customs Cooperation Council's official interpretation of the HTSUS. While not legally binding, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See 54 Fed.Reg. 35127, 35128 (August 23, 1989). EN IX to GRI 3(b), page 4, states as follows:

[f]or the purposes of this Rule, composite goods made up of different components shall be taken to mean not only those in which the components are attached to each other to form a practically inseparable whole but also those with separable components, provided these components are adapted one to the other and are mutually complementary and that together they form a whole which would not normally be offered for sale in separate parts. (emphasis in original)

Because the devices are composite goods, we must determine which component provides the essential character. EN VIII to GRI 3(b), page 4, states that the factors will
vary as between different kinds of goods to determine the essential character of an article. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.

The purpose of both models of the facial esthetic devices is to perform various methods of beauty care to the user's face. None of the functions for either model by itself, imparts the essential character to this merchandise. Therefore, GRI 3(c) is applicable. GRI 3(c) states the following:

When goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration.

The heading that occurs last in numerical order is heading 9019, HTSUS. Therefore, the submitted merchandise is classifiable under subheading 9019.10.20, HTSUS, which provides for: "[m]echano-therapy appliances; massage apparatus. . . : [m]echano-therapy appliances; massage apparatus. . . : [m]echano- therapy appliances and massage apparatus. . . ."

HOLDING:

By application of GRI 3(c), the facial esthetic devices, models TDL-211 and TDL-212, are classifiable under subheading 9019.10.20, HTSUS, which provides for massage apparatus. The general, column one rate of duty is 4.2 percent ad valorem.

Sincerely,

John Durant, Director
Commercial Rulings Division

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