CLA-2 RR:CR:TE 962041 gah
Mr. Louis S. Shoichet
Tompkins and Davidson
One Astor Plaza
1515 Broadway, 43rd floor
New York, NY 10036
RE: Comb and brushes in plastic pouch; set put up for retail
sale, essential character provided by hairbrushes; not a
travel set of 9605, no GRI 5(a) container.
Dear Mr. Shoichet:
This is in regard to your ruling request of April 8, 1998,
and follow-up letter of April 27, on the tariff classification of
two brushes and one comb in a clear plastic drawstring pouch
under the Harmonized Tariff Schedule of the United States,
Annotated (HTSUSA).
FACTS:
The merchandise is described as a "Brush and Beauty Hair
Collection", pp# 166652, which will be produced for Avon
Products, Inc, in either the Republic of China or Korea. The
drawstring bag contains two brushes and one comb. One brush is a
round styling brush, the other is a flat, vented brush. The comb
is a detangling brush with handle. All three of the above items
are full size. The plastic drawstring bag is sized to
accommodate the two brushes and one comb, but the drawstring does
not close the pouch entirely at the top. The items will be
packaged in a sealed polyethylene bag, and imported, marketed and
sold in this manner as a set.
ISSUE:
Is the "Brush and Beauty Hair Collection" classifiable as a
GRI 3(b) set or a travel set of heading 9605, or are the articles
separately classifiable?
LAW AND ANALYSIS:
Classification of merchandise under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA) is governed by
the General Rules of Interpretation (GRI). GRI 1 provides that
classification is determined according to the terms of the
headings and any relative section or chapter notes. Merchandise
that cannot be classified in accordance with GRI 1 is to be
classified in accordance with subsequent GRI, taken in order.
Heading 9605 provides, inter alia, for travel sets
consisting of articles individually falling in different headings
of the nomenclature or consisting of different articles of the
same heading. The Explanatory Notes for the heading in pertinent
part describe toilet sets as a set of articles presented in a
case of leather, fabric or plastics, containing, e.g., molded
plastic boxes, brushes, a comb, scissors, tweezers, a nail file,
a mirror, a razor holder and manicure instruments.
You argue that the articles are classifiable within the
scope of heading 9605. The comb and brushes at issue are
enumerated in the EN as within the intended scope of the term
travel set, that is, the brushes are individually classifiable in
heading 9603, the comb in 9615, and the pouch in 4202. The
brushes and comb are full size and are not otherwise
distinguishable as designed for use in travel. The drawstring
pouch, classifiable in heading 4202, contains the articles when
held by the drawstrings, but the articles easily fall out when
the bag is up-ended. The bag does not close completely, nor
afford any protection from crushing if packed in a larger bag.
For these reasons, we find that the articles do not form a travel
set within the meaning of 9605.
You argue that the articles form a set put up for retail
sale. GRI 3(a) indicates that when goods such as the ones at
issue are classifiable in more than one heading, headings which
refer to part only of the articles, the headings are to be
regarded as equally specific. To meet the criteria of a set put
up together for retail sale, articles must, inter alia, be put up
for retail sale to meet a particular need or activity. The
articles will be put up together in a plastic drawstring pouch,
and then sealed in a polyethylene bag. We find that the articles
do meet the activity of grooming the hair.
To be classified at GRI 3(b), the set must be classifiable
as if the set consisted of the one article which gives the whole
its essential character, insofar as this criterion
is applicable. The Explanatory Notes indicate that the
characteristic which gives the set its essential character may
include the quantity, weight or value or role the component plays
in the set.
You argue that the set cannot be classified under GRI 3(b)
because no essential character can be determined. You cite three
NY rulings that classified sets including brushes and combs by
GRI 3(c). Under 3(c), sets without an essential character are
classified in the heading which occurs last in numerical order
among those headings equally meriting consideration, which would
be the comb in this case.
We disagree. The set is a hair grooming set, for use in
drying, styling and grooming the hair. To that end, there are
two brushes, one that styles hair in conjunction with a hair
dryer, and the other which provides grooming. The comb detangles
hair. The drawstring bag contains the articles for storage.
Among these articles, we believe the brushes provide the
essential character of the set, by all of the above mentioned EN
attributes, particularly in that they are the necessary articles
to each step of the hair drying and grooming process. The role
of the comb can be replaced by the flat brush in detangling hair.
The pouch is the heading 4202 container by which the set is
put up together for retail sale, and provides a means of storage
if the user is so inclined. The pouch does not meet the criteria
set forth in GRI 5(a) or (b) to be classified as such a
container. It is not specially shaped or fitted so as to contain
only these articles. The sealed polyethylene bag is GRI 5(b)
packing material.
In a thorough reading of existing NY and HQ rulings, we find
that there are no rulings directly on point, that is, addressing
the classification of one or two brushes, one comb, one pouch,
and nothing else. The specific articles in a potential set are
critical to the outcome of its classification, especially to the
finding of an activity or need addressed and an essential
character of the whole.
In classifying the set according to the brushes, the vent
brush at entry is valued at 31.5 cents each. It is classifiable
in subheading 9603.29.40. The round brush is valued at 92 cents
each, and is classifiable in subheading 9603.29.80. Therefore,
classification between the two eight-digit subheadings describing
the brushes by value will be resolved by the terms of GRI 6,
which require that the GRIs be applied in sequence to chose
between comparable subheadings at the same level. In short, the
essential character of the set is not more specifically describe
in one or the other of these subheadings. By the terms of GRI
3(c), the subheading that occurs last resolves the classification
of the set at the eight digit level.
HOLDING:
The instant articles are classified as a set put up for
retail sale in subheading 9603.29.8010, HTSUSA, as hairbrushes,
valued over 40 cents each. The applicable general column rate of
duty is 0.3 cents each and 3.6 percent ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division