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