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HQ 960813




January 27, 1998

CLA-2 RR:CR:GC 960813ptl

CATEGORY: CLASSIFICATION

TARIFF NO: 3924.90.55; 9603.29.4090; 3307.90.00; 8212.20.00; 8213.00.90; 9615.11.30; 8203.20.20; 8214.20.30.

Port Director
U.S. Customs Service c/o Chief, Residual Liquidation and Protest Branch 6 World Trade Center, Room 761
New York, New York 10048-0945

RE: Protest No. 1001-97-103904; Mustache Set; GRI 3; NY 874979, 826210.

Dear Port Director:

The following is our response to the referral by your office, dated July 28, 1997, of the request for further review of the above-referenced protest.

FACTS:

The consumption entry covering the imported merchandise was liquidated on February 28, 1997, under the provision for travel sets for personal toilet in subheading 9605.00.0000, Harmonized Tariff Schedule of the United States (HTSUS), with duty at the general rate of 8.1 percent. A timely protest under 19 U.S.C. 1514 was received on May 29, 1997. The protestant requested that the merchandise be treated as a mustache set and that the entry be reliquidated under the provision for Combs, hair-slides and the like; hairpins, curling pins, curling grips, hair-curlers and the like, other than those of heading 8516, and parts thereof: Combs, hair-slides and the like: Of hard rubber or plastics: Combs: Valued over $4.50 per gross: Other" in subheading 9615.11.3000, HTSUS, with duty at the general rate of 4.6 percent ad valorem plus 28.8 cents per gross.

The sample of the merchandise which was submitted consists of a plastic base, slightly over 3« inches in diameter, with preformed holes into which the following articles have been inserted: a shaving brush, a container of mustache wax, a razor, a scissors, a plastic mustache comb, tweezers, and a fingernail clipper.

ISSUE:

Whether the merchandise should be classified as a mustache set, or as individual, separately classifiable, components.

LAW AND ANALYSIS:

Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRI). The systematic detail of the HTSUS is such that virtually all goods are classified by application of GRI 1, that is, according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied in order. In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes (ENs), although not dispositive or legally binding, provide a commentary on the scope of each heading of the HTSUS, and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

In the instant situation, there is no specific heading that refers to the article. The heading under which the entry was liquidated, 9605.00.0000, HTSUS, which applies to Travel sets for personal toilet, sewing or shoe or clothes cleaning is not correct. The unifying element of the article is a rigid plastic base which contains holes into which all the other components of the article are placed. This base is, in the words of the manufacturer, a "handsomely designed black matte and gold stand" which is an essential element of the article and appears to be intended for use on a vanity or sink counter top. The article is clearly not a travel item.

The failure to qualify as a travel set does not automatically mean that the merchandise cannot be classified as a set. As stated earlier, the article consists of several components related to the grooming of men's facial hair and fingernails, each of which can be classified in a separate heading. Inasmuch as the collection of articles is not provided for by a single name in the HTSUS, we must attempt to classify it in accordance with the provisions of GRI 3.

GRI 3 requires that we examine the components of the article to determine whether the elements enumerated in the rule have been satisfied. We must consider each of these elements sequentially. GRI 3(a) provides that the heading which provides the most specific description is to be used rather than one which is more general. When there are mixtures of articles or composite goods put up for sale as sets for retail sale as they are here, the rule states that the headings shall be considered equally specific. This forces us to turn to GRI 3(b).

GRI 3(b) governs the classification of mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale. The ENs provide that, if this rule applies, goods shall be classified as if they consisted of the material or component which gives them their essential character. This determination may be based upon a variety of factors, such as bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods. However, for GRI 3(b) to apply, the goods put up for retail sale must meet three criteria. First, they must consist of at least two different articles which are, prima facie, classifiable in different headings. Second, they must consist of products or articles put up together to meet a particular need or carry out a specific activity. Finally, they must be put up in a manner suitable for sale directly to users without repacking.

The instant combination of articles meets the first and last criteria of GRI 3(b). The several items are classifiable in different headings and the combination will be put up for sale without the need for repacking. However, whether it meets the second criteria of being put together to meet a particular need or carry out a specific activity is questionable.

In NY 874979, dated June 12, 1992, Customs ruled that a moustache kit consisting of a butcher block holder, scissors, a comb, a brush and moustache wax constituted a set within the criteria of GRI 3. The combination of articles we are presently considering differs significantly from the assortment in NY 874979. The combination under consideration has several additional items. While we might concede that adding the tweezers, shaving brush and razor does not change the activity which the set is designed to carry out, it does expand the limits beyond moustache care to encompass the entire face. However, when fingernail clippers are added to the collection of articles, the "specific activity" concept requirement of GRI 3(b) is lost and the combination of articles fails as a set.

To illustrate, in NY 826210, dated February 5, 1988, it was determined that five kitchen articles and one non-kitchen article imported together did not comprise a set within the meaning of GRI 3(b) and the articles were therefore separately classifiable. In a memorandum to the Area Director, New York Seaport, 081858 SM, dated March 25, 1988, Headquarters expressed agreement with the determination in NY 826210. Accordingly, Customs will not attempt to construct a qualifying set or sets out of articles of a failed set.

Because we have determined that the articles do not qualify as a set within the requirements of GRI 3(b), it is not necessary for us to proceed to GRI 3(c) and address the protestant's contention that the article should be classified under the heading for combs.

HOLDING:

Customs will not construct a qualifying set or sets out of articles of a failed set. The components packaged together in the sample article do not qualify as a set within the framework of GRI 3. Accordingly, they are classified individually, as follows:

The plastic base is classifiable in subheading 3924.90.55, HTSUS, which provides for Tableware, kitchenware, other household articles and toilet articles, of plastics: Other: Other.

The shaving brush is classifiable in subheading 9603.29.4090, HTSUS, which provides for Toothbrushes, shaving brushes, hair brushes, nail brushes, eyelash brushes and other toilet brushes for use on the person, including such brushes constituting parts of appliances: Other: Other.

The mustache wax is classifiable in subheading 3307.90.00, HTSUS, which provides for Pre-shave, shaving or after-shave preparations, personal deodorants, bath preparations, depilatories and other perfumery, cosmetic or toilet preparations, not elsewhere specified or included; prepared room deodorizers, whether or not perfumed or having disinfectant properties: Other.

The razor is classifiable in subheading 8212.20.00, HTSUS, which provides for Razors and razor blades (including razor blade blanks in strips), and base metal parts thereof: Safety razor blades, including razor blade blanks in strips.

The scissors are classifiable in subheading 8213.00.90, HTSUS, which provides for Scissors, tailors' shears and similar shears, and blades and other base metal parts thereof: Valued at over $1.75/dozen: Other.

The plastic mustache comb is classifiable in subheading 9615.11.30, HTSUS, which provides for Combs, hair-slides and the like: Valued over $4.50 per gross: Other.

The tweezers are classifiable in subheading 8203.20.20, HTSUS, which provides for Pliers (including cutting pliers), pincers, tweezers and similar tools, and parts thereof: Tweezers.

The fingernail clipper is classifiable in subheading 8214.20.30, HTSUS, which provides for Manicure or pedicure sets and instruments (including nail files), and parts thereof: Cuticle or corn knives, cuticle pushers, nail files, nail cleaners, nail nippers and clippers, all the foregoing used for manicure or pedicure purposes, and parts thereof.

You are instructed to deny the protest, except to the extent the reclassification of the merchandise as indicated above results in a net duty reduction and partial allowance.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, Revised Protest Directive, dated August 4, 1993, a copy of this decision attached to Customs Form 19, Notice of Action, should be provided by your office to the protestant no later than 60 days from the date of this decision and any reliquidations of entries in accordance with this decision must be accomplished prior thereto. Sixty days from the date of this decision the Office of Regulations and Rulings will take steps to make this decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division


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