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HQ 962041




November 16, 1998

CLA-2 RR:CR:TE 962041 gah

CATEGORY: CLASSIFICATION

TARIFF NO.: 9603.29.8010

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

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