Revocation of NY D83023; Tariff classification of a wax depilatory kit designed for hair removal

U.S. Department of Homeland Security Washington, DC 20229 U.S. Customs and Border Protection HQ H241023 August 3, 2015 CLA-2OT: RR: CTF: TCM: H241023 ERB CATEGORY: Classification TARIFF NO.: 8516.79.0000 Mr. Art Taylor Conair Corporation 150 Milford Road East Windsor, NJ 08520 RE: Revocation of NY D83023; Tariff classification of a wax depilatory kit designed for hair removal Dear Mr. Taylor: U.S. Customs and Border Protection (CBP) issued you, on behalf of Conair Corporation, New York Ruling Letter (NY) D83023, dated October 22, 1998. NY D83023 pertains to the tariff classification under the Harmonized Tariff Schedule of the United States, (HTSUS) of a wax depilatory kit designed for hair removal. We have since reviewed NY D83023 and find it to be in error. Pursuant to Section 625(c), Tariff Act of 193099 (19 U.S.C. 1625(c)), as amended by Section 623 of Title VI (Customs Modernization), of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057), a notice was published in the Customs Bulletin, Volume 49, Number 26, on July 1, 2015, proposing to revoke NY D83023, and any treatment accorded to substantially similar transactions. No comments were received in response to the proposed revocation. FACTS: NY D83023 states the following: As indicated by the submitted sample and descriptive literature, the roll-on waxer, identified as the “BaByliss Institut” is a wax depilator [sic] kit designed for hair removal. The kit consists of a hand-held electric depilator, wax cartridges, an after-depilation oil, and fabric strips. In operation, the depilator rolls the heated wax onto the skin, and, once this is completed, the user applies the fabric bands to the skin. The bands are then lifted from the skin, thereby removing the hair. The applicable subheading for the “BaByliss Institut” roll-on waxer kit will be 8543.89.9695, Harmonized Tariff Schedule of the United States (HTS), which provides for other electrical machines and apparatus, …, not specified or included elsewhere in Chapter 85, HTS. The rate of duty will be 2.9 percent ad valorem. Subheading 8543.89.9695, HTSUSA (Annotated), has since been changed to 8543.70.9650, HTSUSA. ISSUE: Whether the subject wax depilatory kit which utilizes an electrical heating device is classified as an other electrothermic appliance used for domestic purposes, in heading 8516, HTSUS, or whether it is provided for as other electrical machines having individual functions, in heading 8543, HTSUS. LAW AND ANALYSIS: Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined 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 2 through 6 may then be applied in order. The HTSUS provisions under consideration in this case are as follows: 8516 Electric instantaneous or storage water heaters and immersion heaters; electric space heating apparatus and soil heating apparatus; electrothermic hairdressing apparatus (for example, hair dryers, hair curlers, curling tong heaters) and hand dryers; electric flatirons; other electrothermic appliances of a kind used for domestic purposes; electric heating resistors, other than those of heading 8545; parts thereof: *** 8543 Electrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter; parts thereof: GRI 3 guides the analysis when classifying goods that are mixtures, composite goods, or goods put up in sets for retail sale, because those goods are, prima facie, classifiable under two or more headings. GRI 3(b) provides as follows: (b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable. A “sets” analysis pursuant to GRI 3(b) is appropriate in this context, as no single heading describes all the products which are packaged and sold together. In understanding the language of the HTSUS, the Explanatory Notes (ENs) of the Harmonized Commodity Description and Coding System, which constitute the official interpretation of the HTSUS at the international level, may be utilized. The ENs, although not dispositive or legally binding, provides a commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989). The EN (X) to GRI 3(b) is relevant here and states, in pertinent part, the following: (X) 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. Therefore, for example, six fondue forks cannot be regarded as a set within the meaning of this rule; (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). The term therefore covers sets consisting, for example, of different foodstuffs intended to be used together in the preparation of a ready-to-eat dish or meal. *** For the sets mentioned above, the classification is made according to the component or components taken together, which can be regarded as conferring on the set as a whole its essential character. The EN 85.16, subsection (E) Other Electro-Thermic Appliances of a Kind Used For Domestic Purposes, is also relevant. It states, in part: This group includes all electro-thermic machines and appliances provided they are normally used in the household. The subject merchandise is prima facie composed of at least two different articles which are classifiable in different headings. Therefore the first criteria of the EN (X) to GRI 3(b) is satisfied. During the course of operating the subject wax depilatory kit, the user rolls the heated wax onto the skin by using the hand-held electric depilator. Once this is completed, the user applies the fabric bands to the skin. As the fabric bands are lifted from the skin, the hair is removed. Therefore, the goods are put up together to meet the particular need or specific activity of removing unwanted body hair. Thus, the second criteria of the EN (X) to GRI 3(b) is satisfied. Finally, the goods are packaged together suitable for sale directly to the consumer without repacking. As such, the third criteria to the EN (X) to GRI 3(b) subsection (c) is satisfied. The subject merchandise is therefore a “set” for tariff purposes, and classification will be made according to the component which imparts the essential character. Packaged together with the hand-held electric depilator are wax cartridges, an after-depilation oil, and fabric strips. The bulk, weight, and cost of the individual components of this set clearly weigh in favor of the hand-held electric depilator imparting the essential character of the set. Furthermore, the cartridges, oil, and fabric strips are supplies which are consumed as the individual uses the hand-held device. They are replenished as needed, but the hand-held device is used repeatedly. The value of the kit to the consumer is in the hand-held device. Therefore, the hand-held electric depilator imparts the essential character and classification will be made pursuant to this component, which is a thermoelectric device. Thermoelectric means heat is produced by electricity. Devices described as such are classified in Chapter 85, as electrical machinery. The hair-removal system is not manufactured, designed, packaged, or marketed for commercial or industrial use. It is made for individuals to use in their home, or in other words, for domestic use. Heading 8543, HTSUS, states that goods which are not specified or included elsewhere in this chapter (Chapter 85) are classified therein. However, the subject merchandise is more specifically described by the tariff terms of heading 8516, HTSUS, as an other electrothermic appliance of a kind used for domestic purposes. Therefore, classification in heading 8543, HTSUS is precluded. Further, classification in heading 8516, HTSUS, is consistent with other Customs rulings of similar merchandise. See NY G86638, dated February 6, 2001 (classifying an electrothermic device used in the home to warm and moisturize hands and feet in heading 8516, HTSUS); and see NY E83637, dated July 8, 1999 (classifying a hot wax bath for use in the home, described as an electric heating resistor, in heading 8516, HTSUS). HOLDING By application of GRI 3(b), the wax depilatory kit is classified in heading 8516, HTSUS. It is specifically provided for under subheading 8516.79.0000, HTSUSA, which provides for, “Electric instantaneous or storage water heaters and immersion heaters; electric space heating apparatus and soil heating apparatus; electrothermic hairdressing apparatus (for example, hair dryers, hair curlers, curling tong heaters) and hand dryers; electric flatirons; other electrothermic appliances of a kind used for domestic purposes; electric heating resistors, other than those of heading 8545; parts thereof: Other.” The column one, general rate of duty is 2.7% ad valorem. Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided at www.usitc.gov EFFECT ON OTHER RULINGS NY D83023, dated October 22, 1998, is hereby REVOKED. In accordance with 19 U.S.C. § 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin. Myles B. Harmon, Director Commercial and Trade Facilitation Division