CLA 2 RR:CR:TE 959563 SG
TARIFF NO: 4202.92.3030
David Greenleaf, Port Director
U.S. Customs Service
P.O. Box 619050
DFW Airport, Texas 75261
RE: Internal Advice 19/96, textile toiletry pouch, GRI 3(b), GRI 5(a), heading 4202, HTSUS
Dear Mr. Greenleaf:
This is in response to your request for internal advice dated May 5, 1997, concerning the proper classification of a toiletry bag and the application of General Rule of Interpretation 5(a), Harmonized Tariff Schedule of the United States Annotated (HTSUSA). A sample was submitted to this office for examination.
FACTS:
The submitted sample is a drawstring pouch consisting of various layers of materials:
a. the exterior of the bag is constructed of a ribbed polyester fabric;
b. the next layer is an inner batting of man made textile material;
c. the last layer is composed of a vinyl lining.
The pouch measures approximately 5 1/2 inches in length and features a rounded bottom measuring approximately 4 inches in diameter. The upper third of the pouch consists of two layers of outer fabric surrounding the inner batting which is achieved by folding the fabric down inside the bag and sewing it into place. The doubling of the outer fabric allows the upper third of the pouch to be bunched together without exposing the unfinished surface. The top of the pouch is secured by means of a drawstring cord. The pouch has a separate bottom. The exterior is embroidered “PARFUMS Cartier Paris”. There is a fabric label sewn into the interior vinyl lining which reads “Made in China”.
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The pouch is said to be sent to a Dallas/Fort Worth Foreign Trade Zone (FTZ) where it is combined with various toiletries (sample bottle of perfume, sample tube of bath gel and a small jar of body cream) and then entered into the commerce of the United States. There is no information as to whether the pouch is entered into the FTZ as Privileged or Non-Privileged.
The perfume sets are given away, free of charge, to Cartier customers when they purchase certain other specified Cartier merchandise.
The importer believes that the toiletry pouch is classified within subheading 4202.92.9026, HTSUSA, as other bags, with outer surface of textile materials, other, of man-made fibers. However he feels that the pouch and the toiletries are classified in subheading 3303.00.3000 HTSUSA, as a perfume set.
ISSUE:
Are a pouch and samples of toiletries contained therein classified as a set or as separates?
LAW AND ANALYSIS:
The classification of the toiletry bag hinges upon whether the container and its contents constitute a set and, if so, is its essential character is imparted by the bag or by the cosmetics.
Classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that classification shall be determined according to the rules of the headings and any relative section or chapter notes, taken in order. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI.
In pertinent part, GRI 2(b) states that:
The classification of goods consisting of more than one material
or substance shall be according to the principals of rule 3
GRI 3 (a) directs that the headings are regarded as equally specific when each of the headings refers to part only of the materials contained in composite goods. Therefore, we look to GRI 3(b) which, in pertinent part, states that:
Composite goods 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.
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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 or component, its
bulk, quantity, weight or value, or by the role of a constituent
material in relation to the use of the goods.
Although these toiletries and the toiletry bag share the role of motivating a customer to make a minimum purchase of goods offered for sale, customs has generally found that toiletries and the substantial, reusable containers in which they are imported, differ significantly from each other in nature, bulk, weight, value, and role. (See HQ 957707, dated June 26, 1995, and HQ 953537, dated June 16, 1993.) The toiletries provide the means for one to groom and improve the condition or appearance of various human features. Toiletry bags or cases serve to store, protect, transport and, if so designed, organize the toiletry products with which they are entered. In pertinent part, Explanatory Note XI to GRI 3(b) indicates that:
For purposes of this Rule, composite goods made up of different
components, shall be taken to mean not only those in which the
components are attached to each other to become a practically
inseparable whole but also those with separable components,
provided these components are adapted one to the other and are
mutually complementary and that together they form a whole which
would not normally be offered for sale in separate parts.
In this case, the toiletries and the toiletry bag are separable but not mutually complementary. The components are not adapted to be used together and are of a kind normally offered for sale separately. Therefore, the toiletry bag and toiletries do not constitute a composite goods.
If the toiletry bag and toiletries were put up for retail sale rather than given as a “gift with purchase”, we would also find that the complete article fails to meet the qualifying criteria for classification as a set. Explanatory Note X(b) to GRI 3(b) states that:
For the purpose 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...
The toiletries are used to enhance one’s appearance. The bag serves to protect, store, and carry the toiletries. Inasmuch as the products meet different needs and carry out separate
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activities, they would not comprise a set.
We 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 instruments, gun cases, drawing instrument
cases, necklace cases and similar containers, specifically 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.
Although suitable for long-term use and entered with the toiletries, we do not consider the soft-sided toiletry bag to be a container specifically shaped or fitted to contain specific articles. As previously noted, toiletry bags and toiletries are normally sold separately. Therefore GRI 5(a) does not operate to make the container classifiable with its contents.
It is our conclusion that the toiletry bag imported with toiletries does not constitute a set, if put up for retail sale. The bag is separately classified.
Heading 4202, HTSUS, provides for, trunks, suitcases, vanity cases, attache cases, briefcases, school satchels, spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters and similar containers; traveling bags, toiletry bags, knapsacks and backpacks, handbags, shopping bags, wallets, purses, map cases, cigarette cases, tobacco pouches, tool bags, sports bags, bottle cases, jewelry boxes, powder cases, cutlery cases and similar containers, of leather or of composition leather, of sheeting of plastics, of textile materials, of vulcanized fiber or of paperboard, or wholly or mainly covered with such materials or with paper. In Totes, Inc., v. United States, 18 C.I.T. 919, 865 F. Supp. 867, 871 (1994), the Court of International Trade concluded that the “essential characteristics and purpose of Heading 4202 exemplars are...to organize, store, protect and carry various items.” The Court also ruled that by virtue of ejusdem generis the residual provision for “similar containers” in heading 4202, HTSUS, is to be broadly construed.
It is clear that the subject merchandise is of a strong and durable construction. The purpose of the pouch therefore becomes to 1) provide protection against breakage of the bottles contained therein; and 2) a secure means by which to carry the toiletries. As such, these protective properties clearly make the sack the type of article provided for under 4202, HTSUS.
HOLDING:
The subject merchandise is properly classified in subheading 4202.92.3031, HTSUSA, the provision for “Travel, sports and similar bags: of man-made fibers with outer surface of textile
materials: other: of man made fibers: other.” The applicable rate of duty is 19 percent ad valorem
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and the quota category is 670.
The designated textile and apparel category may be subdivided into parts. If so, visa and quota requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bilateral agreements which are subject to frequent negotiations and changes, we suggest that you advise the importer to check, close to the time of shipment, the Status Report On Current Import Quotas (Restraint Levels), an issuance of the U.S. Customs Service, which is updated weekly and is available at the local Customs office.
Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, the importer should be advised that he should contact the local Customs office prior to importing the merchandise to determine the current status of any import restraints or requirements.
Sincerely,
John Durant, Director
Commercial Rulings Division