CLA-2 R:C:F 957707 GGD
3304.91.0010; 4202.12.2020; 9603.30.6000
Ms. Grace Padilla
W.J. Byrnes & Co.
Post Office Box 280205
San Francisco, California 94128
RE: "Cosmetic Set;" Plastic Carrying Case and Cosmetics; Not Set
Dear Ms. Padilla:
This letter is in response to your inquiry of January 25,
1995, on behalf of your client, Sanrio, Inc., concerning the
classification under the Harmonized Tariff Schedule of the United
States Annotated (HTSUSA), of an article identified as a
"Cosmetic Set," imported from Taiwan. A sample was submitted
with your request.
FACTS:
The sample article, identified by item no. 17362, consists
of a molded plastic, semi oval-shaped carrying case with a handle
and a slider lock. The case measures approximately 6-1/2 inches
in length by 5-1/2 inches in width by 2-1/4 inches in depth
(closed). The top half of the case is translucent. A flimsy
plastic packer tray (with a flimsy, clear plastic top liner) is
seated in the bottom half of the case's interior. The easily
removable tray is fitted to hold cosmetic articles which consist
of one lipstick, one bottle of nail polish, one shade of blush,
five shades of cream eyeshadow, and two eyeshadow brushes. The
complete article will be imported suitable for direct retail sale
without repacking.
ISSUE:
Whether the article is properly classified as a set, or as
individual, separately classifiable components. -2-
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with
the General Rules of Interpretation (GRIs). The systematic
detail of the harmonized system 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 GRI's may
then be applied. The Explanatory Notes (ENs) to the Harmonized
Commodity Description and Coding System, which represent the
official interpretation of the tariff at the international level,
facilitate classification under the HTSUS by offering guidance in
understanding the scope of the headings and GRIs.
As noted above, item no. 17362 consists of numerous
individual components. The article cannot be classified by
reference to GRI 1 because several of the components are
classifiable in different headings. The lipstick, nail polish,
eyeshadows, and blush are classifiable in heading 3304, HTSUS, as
beauty or make-up preparations. The plastic case is classifiable
in heading 4202, HTSUS, as a vanity case. The eyeshadow brushes
are classifiable in heading 9603, HTSUS, as brushes.
In pertinent part, GRI 2(b) states that:
[t]he classification of goods consisting of more than
one material or substance shall be according to the
principles of rule 3.
GRI 3(a) directs that the headings are regarded as equally
specific when each of the three separate headings refers to part
only of the items in a set put up for retail sale. Therefore, to
determine under which provision the article will be classified,
we look to GRI 3(b), which in pertinent part states that:
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.
Explanatory Note VIII to GRI 3(b) provides the following guidance
concerning the essential character determination:
The factor which determines essential character will
vary as between different kinds of goods. It may, for
example, be determined by the nature of the material -3-
or component, its bulk, quantity, weight or value, or
by the role of a constituent material in relation to
the use of the goods.
Each cosmetic component is essentially similar in nature and
value, and complements the other cosmetic components, providing
play and adult grooming practice for young girls. The plastic
case component, however, is unique. It serves to collect,
organize, transport, and store the cosmetic components with which
it is entered. Explanatory Note X(b) to GRI 3(b) relates that:
For the purposes of this Rule, the term "goods put up
in sets for retail sale" shall be taken to mean goods
which:
consist of products or articles put up together to
meet a particular need or carry out a specific
activity....
Although the plastic case is the component of greatest bulk,
weight, and value, the substance of Explanatory Notes VII and
X(b) indicates that the case's dissimilarity from the other
components precludes it from providing the whole article with its
essential character. The case and cosmetic components are not
mutually complementary, not adapted to one another, and are not
put up to meet a particular need or carry out a specific
activity. Thus, the goods do not comprise a set.
We next note that certain containers may be classified with
the articles they are designed to hold, if the requirements of
GRI 5(a) are met. In pertinent part, GRI 5(a) states that:
Camera cases, musical instrument cases, gun cases,
drawing instrument cases, necklace cases and similar
containers, specially shaped or fitted to contain a
specific article or set of articles, suitable for long-
term use and entered with the articles for which they
are intended, shall be classified with such articles
when of a kind normally sold therewith.
We note from the above that it is the case or container
itself, which must be specially shaped or fitted to contain a
specific set of articles. The flimsy plastic tray into which the
cosmetic components are inserted is not a part of the actual
container. Hence, we do not regard the plastic case as one that
is specially shaped or fitted, and find that GRI 5(a) does not
operate to make the container classifiable with its contents.
Therefore, each individual component, in addition to the
container, is separately classifiable. -4-
HOLDING:
The individual components of item no. 17362, packaged
together for retail sale as a "Cosmetics Set," are separately
classified as follows:
The lipstick is properly classified in subheading
3304.10.0000, HTSUSA, the provision for "Beauty or make-up
preparations...manicure or pedicure preparations: Lip make-
up preparations." The applicable duty rate is 3.9 percent
ad valorem.
The eyeshadows are properly classified in subheading
3304.20.0000, HTSUSA, the provision for "Beauty or make-up
preparations...manicure or pedicure preparations: Eye make-
up preparations." The applicable duty rate is 3.9 percent
ad valorem.
The nail polish is properly classified in subheading
3304.30.0000, HTSUSA, the provision for "Beauty or make-up
preparations...manicure or pedicure preparations: Manicure
or pedicure preparations." The applicable duty rate is 3.9
percent ad valorem.
The blush is properly classified in subheading 3304.91.0010,
HTSUSA, the provision for "Beauty or make-up preparations...
manicure or pedicure preparations: Other: Powders, whether
or not compressed, Rouges." The applicable duty rate is 3.9
percent ad valorem.
The carrying case is properly classified in subheading
4202.12.2020, HTSUSA, the provision for "Trunks, suitcases,
vanity cases...holsters and similar containers;...: Trunks,
suitcases, vanity cases...and similar containers: With outer
surface of plastics or of textile materials: With outer
surface of plastics, Structured, rigid on all sides: Trunks,
suitcases, vanity cases and similar containers." The
applicable duty rate is 20 percent ad valorem.
The brushes are properly classified in subheading
9603.30.6000, HTSUSA, the provision for "Brooms,
brushes...squeegees (other than roller squeegees): Artists'
brushes, writing brushes and similar brushes for the
application of cosmetics: Valued over 10 cents each." The
applicable duty rate is 2.5 percent ad valorem.
Lipstick, nail polish, eyeshadows, and blushes may be
subject to regulations of the Food and Drug Administration (FDA).
Questions regarding these products may be directed to: -5-
FDA
5600 Fishers Lane
Rockville, Maryland 20857
(301) 443-1544, 3170
Sincerely,
John Durant, Director
Commercial Rulings Division