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HQ 963429




April 11, 2001

CLA-2 RR:CR:TE 963429 mbg

CATEGORY: CLASSIFICATION

TARIFF NO.: 4202.32.1000

Barbara Y. Wierbicki, Esq.
Thompkins & Davidson, LLP
One Astor Plaza
1515 Broadway
New York, NY 10036-8901

RE: Request for reconsideration of NY E85727; Classification of a “lipstick case” from China

Dear Ms. Wierbicki:

This is in reply to your letter, on behalf of your client Avon Products, Inc., dated September 15, 1999, wherein you request reconsideration of New York Ruling Letter (“NY”) E85727, dated August 17, 1999. In NY E85727, a child’s lipstick case was classified in subheading 4202.92.4500 under the Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”). Upon review by the Office of Regulations & Rulings, NY E85727 is hereby modified for the reasons set forth below and the subject merchandise is classified in subheading 4202.32.1000, HTSUSA.

Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625 (c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057), a notice was published on February 28, 2001, in Vol. 35, No. 9 of the Customs Bulletin, proposing to modify NY E85727 and to revoke the treatment pertaining to the classification of a child’s lipstick case from China. No comments were received in response to this notice.

FACTS:

The subject merchandise is identified as a child’s Winnie the Pooh lipstick case. In NY E85727 the lipstick case and a wallet were classified, but this reconsideration only concerns the lipstick case.

The lipstick case has an exterior surface of textile reinforced polyvinyl chloride and measures approximately 3 inches wide by 4 inches tall by 1 inch deep. The merchandise consists of a single rectangular compartment with full flap closure and holds three conventional sized lipsticks. The inside flap incorporates a plastic mirror, measuring approximately 3 inches by 4 inches in a cutout representing a silhouette of Winnie the Pooh’s head. The flap is secured with a snap closure.

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 Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80.

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 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 heading 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 three tubes of lipstick which are 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 lipsticks 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.

HOLDING:

NY E85727 is hereby modified.

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.

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.

EFFECT ON OTHER RULINGS:

NY E85727 is modified. In accordance with 19 U.S.C. §1625 (c), this ruling will become effective sixty (60) days after its publication in the Customs Bulletin.

Sincerely,

John Durant, Director
Commercial Rulings Division

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