CLA-2 RR:CR:GC 960813ptl
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