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