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HQ 082053

February 12, 1990

CLA-2 CO:R:C:G 082053 WAW

CATEGORY: CLASSIFICATION

TARIFF NO.: 6302.60.0020, 4602.10.1300

Ms. Lorraine Dugan
Associated Merchandising Corp.
50 Terminal Road
Secaucus, N.J. 07094

RE: Reconsideration of New York Ruling Letters 827486 and 827487 concerning two bath sets from Belgium

Dear Ms. Dugan:

This is in response to your letter of June 16, 1988, requesting the reconsideration of New York Ruling Letters 827486 and 827487, dated February 4, 1988, and February 5, 1988, concerning the tariff classification of two bath sets from Belgium under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

FACTS:

The first bath set consists of two flower shaped soaps, a two inch high glass bottle of foaming bath soap, a two inch high glass bottle of bath salts, and a cotton terry wash mitt. In addition, all of the bath items are wrapped in cellophane and presented in a rattan basket. The soaps and foaming bath soap are made in Belgium, the bath salts are made in Holland, the terry wash mitt is made in Portugal, and the basket is made in China.

The second bath set consists of three flower shaped soaps and a sachet of bath salts wrapped together in cellophane and presented in a rattan basket. The soaps are made in Belgium, the bath salts are made in Holland and the basket is made in China. The entire set will be assembled in Belgium before it is imported into the United States.

In New York Ruling Letters 827486 and 827487, Customs classified each individual item in the set under a separate heading. The importer disputes this classification and claims that the subject merchandise is properly classifiable as a set for tariff purposes. Due to the similarity of the issues and goods involved, the two New York Ruling letters have been consolidated for this reconsideration.

ISSUE:

(1) Whether the merchandise at issue is classifiable as a set for tariff purposes?

(2) If considered a set, which item provides the essential character for classification purposes; and if not considered a set, how are the items properly classified?

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI's) set forth the manner in which merchandise is to be classified under the HTSUSA. GRI 1 requires that classification be determined first according to the terms of the headings of the tariff and any relative section or chapter notes and, unless otherwise required, according to the remaining GRI's, taken in order.

In the instant case, the first issue to be considered is whether the bath soap, the bath salts, the foaming bath soap, the terry wash mitt, as well as the basket are all included under one heading in the Nomenclature. The relevant subheadings at issue in this case are set forth below. Subheading 3307.30.1000, HTSUSA, provides for perfumed bath salts and other bath preparations. The applicable subheading for foaming bath soap is 3307.30.5000, HTSUSA, which provides for perfumed bath salts and other bath preparations: other. The soaps are classifiable under subheading 3401.11.5000, HTSUSA, which provides for soap and organic surface-active products and preparations in the forms of bars, cakes, molded pieces or shapes, and paper, wadding, felt and nonwovens, impregnated, coated or covered with soap or detergent; for toilet use: other. Classification of a rattan basket is under subheading 4602.10.1300, HTSUSA, which provides for basketwork, wickerwork and other articles, made directly to shape from plaiting materials or made up from, articles of heading 4601; articles of loofah: of vegetable materials: other basket and bags, whether or not lined: of rattan or of palm leaf. Finally, the applicable subheading for a terry wash mitt is 6302.60.0020, HTSUSA, which provides for toilet linen and kitchen linen, of terry toweling or similar terry fabrics, of cotton: towels: other.

Since no heading, by itself, covers the subject merchandise, classification cannot be determined by applying GRI 1. Therefore, reference to the subsequent GRI's is necessary. GRI 2 is not applicable here because the items in question are not incomplete or unfinished articles and are not mixtures or combinations of goods.

GRI 3, however, is applicable in this situation. It provides, in pertinent part:

When, by application of Rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:

(a) 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.

(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 to GRI 3(b) to the HTSUSA, which constitutes the official interpretation of the tariff at the international level, provides, in part:

(X) For the purposes of this Rule, the term "goods put up in sets for retail sale" shall be taken to mean 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 (e.g., in boxes or cases or on boards).

In the instant case, the items qualify as a set within the meaning of GRI 3. Both of the bath sets consist of at least two different articles which are classifiable in different headings. The sets consist of soap and bath crystals, among other things, which are items used together for bathing. Furthermore, the items in the set are presented in a rattan basket and wrapped together in cellophane which demonstrates that these items are normally sold as a set directly to users without repacking. Pursuant to GRI 3(a), the sets cannot be classified under a particular heading since no heading more specifically describes the goods at issue. Because the bath sets cannot be classified by reference to GRI 3(a), we must determine which component, if any, imparts the essential character of the sets pursuant to the factors set out in GRI 3(b).

Explanatory Note VIII to GRI 3(b) states that:

(VIII) 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.

In both cases, the essential character of the bath sets is not readily apparent. Each component plays an essential role in the function of the set. There is no one item in the set which gives it the unique quality that makes the set distinctive. Moreover, the value of the items does not seem to be the deciding factor in either case. The item with the greatest value in one set, the towels, is worth one-quarter of the value of the entire set. In the second case, the basket is worth one-half of the value of the entire set. It hardly seems appropriate, however, in these cases to determine that the towels in one set or the basket in the other set is the component that gives the set its essential character simply on the basis of value alone, particularly in light of the function of the bath set as a whole.

When, as in the instant cases, the component which gives the goods at issue their essential character cannot be determined, classification is ascertained by utilizing GRI 3(c). GRI 3(c) provides:

(c) 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.

Applying GRI 3(c), one of the bath sets is classified under the provision for toilet linen and kitchen linen, of terry toweling or similar terry fabrics, of cotton: towels: other, subheading 6302.60.0020, HTSUSA, since among the soap, the foaming bath soap, the bath salt and the basket, it appears last in numerical order in the Nomenclature. The other set is classified under the provision for basketwork, wickerwork and other articles, made directly to shape from plaiting materials or made up from, articles of heading 4601; articles of loofah: of vegetable materials: other baskets and bags, whether or not lined: of rattan or of palm leaf, in subheading 4602.10.1300, HTSUSA, since among the soap and the bath salts, it appears last in numerical order in the Nomenclature.

HOLDING:

The submitted bath set classified in New York Ruling 827486, is hereby reclassified under subheading 6302.60.0020, HTSUSA, under textile category 363. The rate of duty is 10.3 percent ad valorem. Likewise, the submitted bath set classified in New York Ruling 827487, is hereby reclassified under subheading 4602.10.1300, HTSUSA, and is dutiable at a rate of 10 percent ad valorem.

New York Ruling Letters 827486 and 827487, dated February 5, 1988, and February 4, 1988, are hereby revoked.

The designated textile and apparel category may be subdivided into parts. If so, the 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 you 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 your 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, you should contact your local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

This notice to you should be considered a revocation of New York Ruling Letters 827486 and 827487 under 19 CFR 177.9(d)(1) (1989). It is not to be applied retroactively to New York Ruling Letters 827486 and 827487 (19 CFR 177.9(d)(2) (1989)) and will not, therefore, affect the transaction for importation of your merchandise under that ruling. However, for the purposes of future transactions in merchandise of this type, New York Ruling Letters 827486 and 827487 will not be valid precedent. We recognize that pending transactions may be adversely affected by this revocation, in that current contracts for importation arriving at a port subsequent to the release of New York Ruling Letters 827486 and 827487 will be classified under the new ruling. If such situation arises, you may, at your discretion,
notify this office and apply for relief from the binding effects of the new ruling as may be dictated by the circumstances.

Sincerely,


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See also:

• Tariff No.: 3307.30.10 - Bath salts, whether or not perfumed
• Tariff No.: 3307.30.50 - Bath preparations, other than bath salts
• Tariff No.: 3401.11.50 - Soap, nesoi; organic surface-active products used as soap, in bars, cakes, pieces, soap-impregnated paper, wadding, felt, for toilet use
• Tariff No.: 6302.60.00 - Toilet linen and kitchen linen, of terry toweling or similar terry fabrics, of cotton