CLA-2 CO:R:C:G 086756 SLR
Area Director of Customs
Commercial Operations
New York Seaport
6 World Trade Center
Room 425
New York, NY 10048
RE: Internal Advice Request No. 43/89, Concerning the
Classification and Marking Requirements for
Plastic Compacts from France
Dear Area Director:
This request for Internal Advice was initiated by a letter
dated May 30, 1989, from Mr. Walter A. Smith, Import Manager of
Len-Ron Manufacturing Co., Inc.
FACTS:
Samples of the compact were submitted in both its imported
condition and in the condition in which it will be sold. The
submitted sample is an injection molded plastic compact fitted
with a mirror in the top lid and molded with two empty
compartments in the bottom half. Subsequent to importation, a
metal pan filled with compressed powder will be permanently glued
into one of the compartments. A cosmetic brush will be packed
into the other compartment. The filled container will be placed
into a velvet pouch, then packaged for sale in a paperboard
carton. The compact will be sold at retail in a filled
condition. After its contents have been exhausted, the compact
will be disposed of by the retail consumer.
Len-Ron Maufacturing filed two entries -- 456-0283796-0
dated March 31, 1989 and 456-0283990-9 dated April 22, 1989 --
with Customs at the New York Seaport. The compacts were
classified as articles of a kind normally carried in the pocket
or in the handbag, with an outer surface of plastic sheeting, in
subheading 4202.32.2000, Harmonized Tariff Schedule of the United
States Annotated (HTSUSA). It was also determined that the
compacts required country of origin marking.
-2-
Mr. Smith of Len-Ron Manufacturing objects to the
determinations made by the New York Seaport. He maintains that
the subject compacts are more properly classifiable as articles
for the packing or conveyance of goods, of plastic, in
subheading 3923.10.0000, HTSUSA. Moreover, he argues that the
compacts are exempt from marking requirements.
ISSUES:
I. Whether the subject compacts are classifiable as
articles of a kind normally carried in the pocket or in the
handbag, with an outer surface of plastic sheeting, in subheading
4202.32.2000, HTSUSA, or as articles for the packing or
conveyance of goods, of plastic, in subheading 3923.10.0000,
HTSUSA.
II. Whether the subject compacts are exempt from Customs
country of origin marking requirements.
LAW AND ANALYSIS:
Classification
Classification of merchandise under the HTSUSA is in
accordance with the General Rules of Interpretation (GRI's),
taken in order. GRI 1 provides that classification is determined
according to the terms of the headings and any relative section
or chapter notes.
No single heading within the Nomenclature provides for the
product in issue -- a plastic compact which contains a mirror.
As a composite good, the subject article must be classified
according to GRI 3. GRI 3(b) provides that composite goods made
up of different components shall be classified as if they
consisted of the component which gives them their essential
character. The Explanatory Notes to GRI 3(b) indicate that
essential character may be determined by considering "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."
It is our determination that the molded plastic represents
the essential character of the compact. The plastic component
gives shape to the compact and keeps the beauty accessories in
their place.
Subheading 4202.32.2000, HTSUSA, provides for articles of a
kind normally carried in the pocket or handbag, with an outer
surface of plastic sheeting. We believe that the subject
compacts qualify as articles of a kind normally carried in the
-3-
pocket or handbag. Nonetheless, Heading 4202 provides only for
"similar containers, of leather or of composition leather, of
plastic sheeting, of textile materials, of vulcanized fiber or
paperboard, or wholly or mainly covered with such material."
The question becomes whether the outer surface of the compacts is
of plastic sheeting.
Dictionaries define the words "sheet" and "sheeting" as
follows:
The Random House Dictionary of the English Language
(Unabridged ed. 1983) at p. 1313:
sheet 2. a broad, relatively thin, surface
layer or covering. 3. a relatively thin, usually
rectangular form, piece, plate, or slab as of
photographic film, glass, metal, etc.
sheeting 1. the act of covering with or forming
into a sheet or sheets.
Webster's Third New International Dictionary of the English
Language (Unabridged ed. 1986) at p. 2091:
sheet 5: A broad thinly expanded portion of
metal or other substance.
sheeting 1: a material in the form of sheets * * *
b: material (as a plastic) in the form of
continuous film * * *.
See also Sekisui Products, Inc. v. United States, 63 Cust.
Ct. 123, C.D. 3885 (1969) which cites the Webster's definition of
"sheets" with approval.
It is our position that the above-cited definitions require
a finding that an article which is made directly from a mass of
plastic which never becomes a "sheet" or "sheeting" and which
never has a "sheet" or "sheeting" applied to its surface cannot
be classified under subheading 4202.32.2000, HTSUSA.
As to whether the compacts when imported empty are articles
for the conveyance or packing of goods, we note that the
Explanatory Note for Heading 3923, HTSUSA, provides that the
heading covers all articles of plastic commonly used for packing
or conveyance of all kinds of products. Inasmuch as the subject
compacts are cases used to convey a brush and some type of
cosmetic, they are classifiable under subheading 3923.10.0000,
HTSUSA, as articles for the conveyance or packing of goods, of
plastics: boxes, cases, crates, and similar articles.
-4-
Country of Origin Marking
Section 304 of the Tariff Act, as amended, (19 U.S.C. 1304)
provides that all articles of foreign origin imported into the
United States shall be legibly and conspicuously marked to
indicate the English name of the country of origin to an ultimate
purchaser in the United States. Section 134.24(c)(1) of the
Customs Regulations provides that when disposable containers or
holders are imported by persons or firms who fill or package them
with products they sell, these persons or firms are the "ultimate
purchasers" of the containers or holders. In such a case, the
containers may be excepted from individual marking under
19 U.S.C. 1304(a)(3)(D) as long as the outside wrappings or
packages containing the containers are marked to indicate the
country of origin of the containers.
In HQ 722170 of July 18, 1983, and HQ 722547 of August 30,
1983, Customs ruled that plastic cosmetic compacts must be
individually marked. Customs later reconsidered its position in
HQ 723905 of March 20, 1984. In that ruling, Customs affirmed
its view that plastic compacts imported empty to be filled in the
U.S. with U.S. made cosmetics were not disposable containers
subject to 19 CFR 134.24(c)(1) because compacts are not merely
containers, but rather are substantial, functional articles in
their own right. As support for this position, Customs cited
rulings classifying compacts as "flat goods" under item 706.60
(706.61) of the Tariff Schedules of the United States (TSUS)
rather than "containers...chiefly used for the packing,
transporting or marketing of merchandise" under item 772.70,
TSUS.
In HQ 731863 of February 14, 1990, Customs altered its
stance regarding the individual marking of empty cosmetic
compacts. That ruling reveals that:
Customs does not regard [the subject plastic
cosmetic compact imported empty and filled
in the U.S. with powdered blush made in
the U.S.] as a substantial, functional
article in it own right. It is not
reasonable to assume that a retail
purchaser would buy the finished product
for the compact. Although plastic compacts
could be refilled, this company does not
sell refills and refill blush for this
particular compact is not available in
the marketplace. When the blush is
used up, the consumer would dispose
of the compact and buy a new compact
containing blush. As offered in the market,
this compact is a disposable container
imported empty to be filled in the U.S.
-5-
Therefore, this item is subject to
19 CFR 134.24(c)(1) which excepts the
compact from individual marking and
only requires that the container in which
the compacts are imported be marked with the
country of origin of the compacts.
That ruling also emphasized that under the Harmonized Tariff
Schedule, injection molded plastic compacts were classifiable in
subheading 3923.10.0000, HTSUSA, the provision for articles for
the conveyance or packing of goods, of plastics, boxes, crates,
and similar articles.
Here, the compacts imported by Len-Ron are not constructed
to accommodate refills. Moreover, once the cosmetic powder is
used up, the compacts will be discarded. The instant compacts,
therefore, are disposable containers and when imported empty,
are subject to the marking exception provided for in
19 CFR 134.24(c)(1).
HOLDING:
The subject compact is classifiable in subheading
3923.10.0000, HTSUSA, which provides for articles for the
conveyance or packing of goods, of plastics, boxes, crates, and
similar articles, dutiable at 3 percent ad valorem.
The subject compact is excepted from marking pursuant to
19 CFR 134.24(c)(1) and only the container in which the compact
is imported must be marked with the country of origin of the
compact.
You should furnish a copy of this decision to the inquirer.
Sincerely,
John Durant, Director
Commercial Rulings Division