CLA-2:CO:R:C:M 955610 JAS
District Director of Customs
1000 2nd. Avenue, Suite 2200
Seattle, WA 98104
RE: PRD 3001-93-100579; Framed Aircraft Mirror, Glass With
Silver Backing Buffed With Cerium Oxide; Glass Mirrors,
Framed, Subheading 7009.92.10, 7009.92.50; Prisms, Mirrors,
Other Optical Elements, Subheading 9001.90.60; Chapter 90,
Note 1(d); Optically Worked Glass, Chapter 90, Additional
U.S. Note 1; Civil Aircraft Agreement (CAA)
Dear Sir:
This is our decision on Protest 3001-93-100579, filed
against your classification of certain mirror assemblies from
Japan for use in aircraft lavatories. The entries under protest
were liquidated on June 25, 1993, and this protest timely filed
on August 30, 1993.
FACTS:
The articles in question are glass bathroom mirrors,
designated part #BA04A250-1, for use in aircraft. They consist
of framed glass mirror stock, the back side of which is coated
with a silver substrate, and the front side buffed with cerium
oxide to insure a scratch-free surface.
These mirrors were entered under the provision for other
parts of airplanes or helicopters, under subheading 8803.30.00,
Harmonized Tariff Schedule of the United States (HTSUS).
Alternatively, protestant proposes classification under
subheading 9001.90.60, HTSUS, as mirrors and other optical
elements, free of duty under the Civil Aircraft Agreement (CAA).
The concerned import specialist determined that the merchandise
constituted framed glass mirrors and liquidated the entry under
subheading 7009.92.10, HTSUS. Subsequently, based on drawings
submitted by protestant, he recomputed the reflective surface
area of the mirrors and determined that subheading 7009.92.50
represented the correct classification. - 2 -
The provisions under consideration are as follows:
7009 Glass mirrors, whether or not framed,
including rear-view mirrors:
7009.92 Framed:
7009.92.10 Not over 929 cm2 in reflecting area
...7.8 per cent
7009.92.50 Over 929 cm2 in reflecting area...10 percent
* * * *
8803 Parts of goods of heading 8801 or 8802:
8803.00.30 Other parts of airplanes or helicopters
...Free
* * * *
9001 Prisms, mirrors and other optical elements,
of any material, unmounted, other than
such elements of glass not optically
worked:
9001.90.60 Mirrors...Free under CAA
ISSUE:
Whether the article under protest is a glass mirror, not
optically worked.
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.
Additional U.S. Rule of Interpretation 1(c), HTSUS, states
that a provision for parts of an article covers products solely
or principally used as a part of such articles but a provision
for "parts" or "parts and accessories" shall not prevail over a
specific provision for such part or accessory. Thus, if the
mirror assemblies are glass mirrors of heading 7009 or mirrors of
heading 9001, they cannot be classified as entered. Likewise, - 3 -
glass mirrors that are not optically worked are provided for in
heading 7009 and are precluded from chapter 90. Chapter 90, Note
1(d), HTSUS.
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,
1989).
Protestant supports the heading 9001 classification by
claiming the mirrors are "optically worked" in that the surface
of the glass is ground or polished in order to produce the
required optical properties. Chapter 90, Additional U.S. Note 1,
HTSUS. The required optical property in this case, according to
protestant, is elimination of scratches and imperfections to
insure perfect reflection.
Relevant ENs at p. 1459, state that optical elements of
glass of chapter 90 are to be differentiated from those of
chapter 70 by whether or not they have been optically worked.
These notes state that the optical working of glass is usually
performed in two stages, i.e., by imparting the necessary
curvature, angle, etc., followed by polishing the surface. This
is done by grinding with abrasives, rough at first, then
gradually finer, the successive operations being roughing,
trueing, smoothing and polishing. Information provided to the
local import specialist indicates the glass in these mirrors is
polished with jewelers' rouge, believed to be cerium oxide, to
eliminate imperfections. This is a simple polishing that is not
the equivalent of the grinding described in the cited ENs.
Moreover, these mirrors are mounted in frames, and heading 9001
encompasses only unframed mirrors. This eliminates heading 9001
from consideration. An alternative claim under heading 9002 is
without merit because, though framed, these mirrors are not
optically worked and are not parts of or fittings for instruments
or apparatus.
HOLDING:
Under the authority of GRI 1, the glass mirror assembly,
part #BA04A250-1, is provided for in heading 7009. Because of
its reflecting area, it is classified in subheading 7009.92.50,
HTSUS. - 4 -
The rate of duty under subheading 7009.92.50 is more than
the liquidated rate. Accordingly, the protest is 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
available to Customs personnel via the Customs Rulings Module in
ACS and to the public via the Diskette Subscription Service,
Lexis, the Freedom of Information Act and other public access
channels.
Sincerely,
John Durant, Director
Commercial Rulings Division