CLA-2 RR:CR:TE 964242 mbg
Ms. Stacy Haines
Wal Mart Stores, Inc.
702 SW 8th St.
Bentonville, AR 72716-8023
RE: Request for classification of a “3 in 1 cosmetic bag” from China
Dear Ms. Haines:
This is in reply to your letter dated May 26, 2000, wherein you request a ruling regarding the classification under the Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”) of what you describe as a “3 in 1 cosmetic bag.” Your prospective request for classification was forwarded to U.S. Customs Headquarters and upon review by the Office of Regulations & Rulings, the subject merchandise is classified in headings 4202 and 6307, HTSUSA, for the reasons set forth below.
FACTS:
The subject merchandise is identified as a “3 in 1 cosmetic bag.” The subject merchandise, style number GV201013, consists of a trinket box, toiletry bag, and lipstick case put up for retail sale. You state that the items will be made in China and sold in the Home and Bath department of Wal Mart stores. Although you claim that the merchandise is a “3 in 1 cosmetic bag,” due to the styling, size and construction of the items, it is unlikely that one would use the 3 items jointly with one inside the other.
The lipstick case is a rectangular shaped lidded container with a snap flap closure which is designed to hold one tube of lipstick. The lipstick case measures approximately 3 ¾ inches in length. It is manufactured of a paperboard base, which is wholly covered with textile material of man-made fibers. The interior of the case is lined with fabric and has a vanity mirror glued to the inside lid.
The small cosmetic bag is also rectangular is shape and measures approximately 7 inches by 4 ¾ inches by 1 ¾ inches. The bag has a zippered closure and Velcro( closure on the flap as well as a mirror on the inside flap. The bag is constructed of black velvet-like fabric with black ribbon stitched on the outer edges as trim.
The “trinket box” is oval in shape and measures approximately 4 ½ inches by 3 ¼ inches by 1 5/8 inches. The box is lidded with gold cord trim and a gold bow glued to the top of the lid. The box is constructed of a paperboard base and then the top and bottom of the box are covered with black polyester fabric with a velvet like vine shaped pattern.
ISSUE:
What is the proper classification for the subject merchandise under the HTSUSA?
LAW AND ANALYSIS:
Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (“GRIs”). GRI 1 provides that classification 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 GRI may then be applied. The Explanatory Notes (“EN”) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI.
Heading 4202, HTSUSA provides for “Trunks, suitcases, vanity cases, attaché cases, briefcases, school satchels, spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters and similar containers; travelling 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.”
Thus, this heading encompasses the articles enumerated, as well as containers similar to these articles.
The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System constitute the official interpretation of the nomenclature at the international level. While not legally binding, they do represent the considered views of classification experts of the Harmonized System Committee. It has therefore been the practice of the Customs Service to follow, whenever possible, the terms of the EN when interpreting the HTSUSA.
The EN to heading 4202 suggest that the expression “similar containers” in the first part of the heading “includes hat boxes, camera accessory cases, cartridge pouches, sheaths for hunting or camping knives, portable tool boxes or cases, specially shaped or internally fitted to contain particular tools with or without their accessories, etc.” With regard to the second part of heading 4202, the EN indicate that the expression “similar containers” indicates articles which must be wholly or mainly composed of the materials specified therein and includes “note-cases, writing-cases, pen-cases, ticket-cases, needle-cases, key-cases, cigar-cases, pipe-cases, tool and jewelry rolls, shoe-cases, brush-cases, etc.” There is no requirement that the articles be specially shaped or fitted.
Heading 4202 indicates coverage is for only the articles specifically named and similar containers. Inasmuch as “lipstick cases” are not eo nomine provided for in heading 4202, HTSUSA, we must consider whether or not the goods are classifiable as “similar containers” under 4202, HTSUSA. Applying the principle of statutory construction known as ejusdem generis, which means “of the same kind,” Customs finds that the subject merchandise is covered by the term “similar containers.”
Under the rule of ejusdem generis, where an enumeration of specific things is followed by a general word or phrase, the general word or phrase is held to refer to things of the same kind as those specified.
With respect to the broad reach of the residual provision for
"similar containers" in heading 4202, HTSUSA, the courts have found that the rule of ejusdem generis requires that the imported merchandise possess the essential characteristics or purpose that unite the articles enumerated in order to be classified under the general term. Totes, Inc. v. United States, 18 Ct. Int'l Trade 919, 865 F. Supp. 867, 871 (1994), aff'd, 69 F.3d 495 (1995). In Totes, the Court of Appeals for the Federal Circuit (“CAFC”) affirmed the Court of International Trade's (“CIT”) determination that the "essential characteristics and purpose of Heading 4202 exemplars are. . . to organize, store, protect and carry various items." Id.
The CIT recently considered a classification issue similar to the subject merchandise involving heading 4202, HTSUS, in the case of Len-Ron Manufacturing Co., Inc. v. United States. In Len-Ron, the court considered the classification of small bags which were used by women to hold cosmetics and various personal items. The court determined that those bags were properly classified as vanity cases of subheading 4202.12, HTSUS, rather than as travel bags of subheading 4202. 92, HTSUS, or as articles normally carried in a pocket or handbag in subheading 4202.32, HTSUS. The court defined a "vanity case" broadly to be "a small handbag or case used to hold cosmetics." Len-Ron Manufacturing Co., Inc. v. United States, 118 F.Supp 2d 1266 (2000). However, the CIT also discussed subheading 4202.32, HTSUS, and stated, "The class or kind defined by the subheading appears to be items which have independent and various functions, albeit normally carried in the pocket or in the handbag. " Id. "Subheading 4202.32, HTSUS, is a broad provision encompassing a variety of articles with specific and independent uses as illustrated by the Explanatory Notes." Id. The instant merchandise is not a generic vanity case for cosmetics like the merchandise under consideration in Len-Ron. The lipstick case is designed specifically to hold a tube of lipstick which is then carried in a women's pocket or most likely in a handbag. The CIT further stated, "subheading 4202.32, HTSUS, addresses the manner in which articles are employed or transported." Id.
Accordingly, the subject merchandise, which is substantially constructed and is designed to carry and protect a woman's lipstick is classifiable within subheading 4202.32, HTSUS, as similar to a wallet or spectacle case whose function is to organize, store, or protect personal items. Furthermore, due to the size, purpose and function of the lipstick case, women tend to carry such an item either on their person or in their handbags and classification within subheading 4202.32, HTSUS, as an article of a kind normally carried in a pocket or handbag is appropriate. This classification is consistent with Customs rulings which have consistently placed lipstick cases in subheading 4202.32. See e.g., NY 818813, dated Feb. 20, 1996; PD A85182, dated July 10, 1996; PD C82693, dated Jan. 5, 1998; PD C86634 dated May 5, 1998; NY D81178, dated Aug. 19, 1998; NY D86874, dated Feb. 9, 1999; and PD D86452, dated Jan. 26, 1999.
The small cosmetic bag, virtually identical to the merchandise discussed by the CIT in Len-Ron, is provided for within subheading 4202.12, HTSUS, which provides for trunks, suitcases, vanity cases, attaché cases, briefcases, school satchels and similar containers. In Len-Ron, the CIT defined the common meaning of “vanity case” as “a small handbag or case used to hold cosmetics[.]” Len-Ron at 46. The subject merchandise is a small bag containing a mirror on the inner portion of the snapped closure which will hold women’s cosmetics and falls within the CIT definition of vanity case. The subject merchandise is therefore properly classified in subheading 4202.12, HTSUS.
The “trinket box” is not eo nomine provided for yet the classification of this kind of box is well established. The following Headquarters Ruling Letters (“HQ”) have classified boxes substantially similar to the trinket box at issue as other articles of textile materials under heading 6307, HTSUSA, see e.g., HQ 872453, dated April 7, 1992; HQ 876018, dated July 22, 1992; HQ 952566, dated December 12, 1992; HQ 953393, dated April 16, 1993; HQ 953634, dated September 10, 1993; HQ 955007, dated December 13, 1993; HQ 955896, dated May 3, 1994; and HQ 955913, dated May 3, 1994. This abundance of precedent is relevant to the instant case.
In HQ 953393, cited above, we classified boxes substantially similar to the box at issue as other made up textile articles under subheading 6307.90.9986, HTSUSA, concluding the merchandise was more like trinket boxes than jewelry boxes of heading 4202, HTSUSA. The lidded boxes subject to HQ 953393 were constructed of cardboard and covered with textile material. They were in the shape of a pentagon and measured 2 and 1/2 inches wide by 1 and 3/4 inches in height. In that ruling, classification in heading 4202, HTSUSA, was inappropriate since the boxes were not specially designed, shaped, or fitted to hold jewelry. Thus, we concluded that the boxes were not jewelry boxes of the ordinary kind, nor of the kind described in the following EN to heading 4202, HTSUS, which states:
The term "jewellery boxes" covers not only boxes specially designed for keeping jewellery [the ordinary kind], but also similar lidded containers of various dimensions (with or without hinges or fasteners) specially shaped or fitted to contain one or more pieces of jewellery and normally lined with textile material, of the type in which articles of jewellery are presented and sold and which are suitable for long term use.
In HQ 951028, dated March 3, 1993, Customs held that various boxes used in the retail sale of jewelry and similar items were jewelry boxes of the kind described in the above EN. The boxes classified therein differ from the boxes classified in HQ 953393 (as well as from the subject box at issue) because they were specially shaped or fitted to contain jewelry (containing inserts, slots, hooks, moldings, and the like) and were in fact used in the presentation and/or sale of such items. The trinket boxes in HQ 953393 were not sold with jewelry, but were sold as boxes for various uses limited only by the imagination of the ultimate consumer and the physical dimensions of the box.
To reiterate, the box at issue is a trinket box, not jewelry box of heading 4202, HTSUSA. Trinket boxes are not specially designed, shaped, or fitted for jewelry. They are not specially constructed to fit any particular item, but can be used to store various items including jewelry. The presence of foam padding in a trinket box does not, by itself, provide the requisite special design to qualify the box as a jewelry box of the kind set forth in the above EN. (In this regard, see HQs 953634, 955007, 955896, and 955913, cited above.)
Since the trinket box at issue is not classifiable as a jewelry box under heading 4202, HTSUSA, it must be classified elsewhere. No other tariff provision provides explicitly for the box; therefore, it is classifiable by application of GRI 3, since GRI 2 directs that "goods consisting of more than one material or substance shall be classified according to the principles of rule 3." The primary materials present in the sample box are paperboard and cotton textile fabric. Under GRI 3(a), the following is provided:
The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.
The applicable headings are 4823, HTSUS, covering other articles of paperboard, and 6307, HTSUS, covering other articles of textile materials. Here, the applicable headings refer only to a part of the materials comprising the article. Therefore, they are considered to be equally specific, rendering classification on the basis of specificity (GRI 3(a)) inapplicable.
Under GRI 3(b), articles composed of two or more materials are classified according to essential character; that is, the article will be considered to consist of the material that imparts its essential character. Here, the paperboard provides the structure for the trinket box, but the textile fabric provides aesthetic appeal and marketability (as decorative articles). Therefore, we are unable to conclude that either component material imparts the essential character and we must proceed to GRI 3(c).
Under GRI 3(c), the following is provided: "When goods cannot be classified by reference to 3(a) or 3(b), they shall be classified under the heading which occurs last in numerical order among those which equally merit consideration." Under this rule, the subject trinket box is properly classified under heading 6307, HTSUSA.
Classification of the subject merchandise as a set is inappropriate. GRI 3(b) provides for the classification of goods put up in sets for retail sale. The rule states, in pertinent part, 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.
Explanatory Note (X) (page 5) to GRI 3(b) states that the term "goods put up in sets for retail sale" means goods which:
(a) consist of at least two different articles which are, prima facie, classifiable in different headings;
(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.
In the instant case, criteria (a) and (c) of the EN to GRI 3(b) are easily met. The merchandise consists of products that, if imported separately, are classifiable in the different headings of 4202, HTSUS and 6307, HTSUS. All three of the subject items are put up for sale in packaging in a manner suitable for sale directly to users without repacking.
Moving to criteria (b), the second requirement of the EN to GRI 3(b), there appear to be no judicial cases under the HTSUS dealing specifically with the meaning of the language "to meet a particular need or carry out a specific activity". In HQ 953472, dated March 21, 1994, Customs articulated its position that in order to be classifiable as a set, the individual components must be "used together or in conjunction with another for a single purpose [need] or activity."
We must determine whether the articles in the set are "put up together to meet a particular need or carry out a specific activity." It is unlikely that a woman would carry all three of these items in a purse or use the articles in conjunction with one another for a single purpose. Each article is designed to serve a separate function is protecting either lipstick or various small cosmetics or, in the case of the trinket box, any small miscellaneous articles. It is unlikely that a single purpose would require the use of all three of these items in conjunction with one another. It is therefore Customs position that the subject merchandise does not constitute a set since its use does not carry out a specific activity.
HOLDING:
The lipstick case is properly classified in subheading 4202.32.1000, HTSUSA as “Trunks, suitcases, vanity cases, attaché cases, briefcases, school satchels, spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters and similar containers; travelling 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: Articles of a kind normally carried in the pocket or in the handbag: With outer surface of sheeting of plastic or of textile materials: With outer surface of sheeting of plastic: Of reinforced or laminated plastics.” The lipstick case is dutiable at general column one duty rate of 12.1 cents per kg plus a rate of duty of 4.6 percent ad valorem.
The small cosmetic bag is properly classified in subheading 4202.12.8070, HTSUSA as “Trunks, suitcases, vanity cases, attaché cases, briefcases, school satchels, spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters and similar containers; travelling 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: Trunks, suitcases, vanity cases, attaché cases, briefcases, school satchels and similar containers: With outer surface of sheeting of plastic or of textile materials: With outer surface of textile materials: Other: Other: Other: Of man-made fibers.” The merchandise is dutiable at general column one duty rate of 18.3 percent ad valorem. The designated textile restraint category number is 670.
The trinket box is properly classified in subheading 6307.90.9989, HTSUSA, which provides for “Other made up articles, including dress patterns: Other: Other: Other: Other: Other. The applicable rate of duty is 7 percent ad valorem.
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 renegotiations and changes, to obtain the most current information available, we suggest that you check, close to time of shipment, The Status Report on Current Import Quotas (Restraint Levels), an internal issuance of the U.S. Customs Service, which is available for inspection at your local Customs office.
Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification), you should contact your local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.
Sincerely,
John Durant, Director
Commercial Rulings Division