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HQ 963593




October 15, 2001

CLA-2 RR:CR:TE 963593 SS

CATEGORY: CLASSIFICATION

TARIFF NO.: 4202.12.2050, 3304.10.0000, 3304.20.0000, 3304.30.0000, 3304.91.0010, 9603.30

Ms. April Vafeades
CFF World Freight Corp.
13 Addison Place
Valley Stream, NY 11580

RE: Travel Case with Cosmetics; Len-Ron Manufacturing Co., Inc. v. United States; Vanity Case; 4202.12.2050, HTSUSA; Beauty or Make-up Preparations; Heading 3304, HTSUSA; Brushes for the Application of Cosmetics; Heading 9603, HTSUSA; Not a Composite Good; Not a GRI 3(b) Set; Container Not Classifiable with Contents Pursuant to GRI 5(a)

Dear Ms. Vafeades:

This letter is in response to your request dated May 12, 1999, on behalf of your client Malby International, concerning the classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) of a travel case with cosmetics made in China. A sample was submitted with your request.

FACTS:

The submitted sample is a large cosmetics bag imported with cosmetics and cosmetics brushes. The bag is rectangular in shape and measures approximately 8.5 inches in height by 12 inches in width by 3 inches in depth. The bag is constructed wholly of polyvinyl chloride (PVC) plastic sheeting and has two carrying handles. A zipper extends along three sides of the bag which allows the bag to be opened and laid out flat. One side of the interior features a full-sized zippered compartment made of clear plastic sheeting. When imported, the compartment contains two lipsticks, two eye shadows, two nail polishes, two blushes and three cosmetic brushes mounted on a cardboard insert. The compartment has additional space that can be used to carry other items. The other side of the interior of the bag features a full-sized compartment with a zippered opening that extends along three sides of the
compartment. This zippered compartment is empty and can be filled by the purchaser with various personal effects. The bag is of sturdy construction and is designed to outlast its contents. The importer states the bag will be used to carry cosmetics.

ISSUES:

Whether the cosmetics bag, cosmetics and cosmetics brushes should be classified as a composite good, as a set, or separately?

What is the proper classification of the cosmetics bag under the HTSUSA?

LAW AND ANALYSIS:

Classification of goods 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 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.

I. The Cosmetics Bag, Cosmetics and Cosmetics Brushes Should Be Classified Separately.

The classification of the instant travel case imported with cosmetics and cosmetics brushes hinges upon whether the container and its contents constitute a composite good or goods put up as sets for retail sale. It is Customs opinion that the article does not meet the definition of a composite good or goods put up as sets for retail sale, and that the individual components of the imported article are separately classifiable.

As described above, the instant travel case consists of numerous individual components. Initially, the article cannot be classified by reference to GRI 1 because several of the components are classifiable in different headings. Beauty or make-up preparations such as lipstick, eye shadow, nail polish, and blush are classifiable in heading 3304, HTSUSA. Cosmetics brushes are classifiable in heading 9603, HTSUSA. Heading 4202, HTSUSA, provides in part for vanity cases, travelling bags, toiletry bags and similar containers. Since the article cannot be classified on the basis of GRI 1, the remaining GRI must be considered.

GRI 2(a) is not applicable since it covers incomplete or unfinished goods. GRI 2(b) directs that the classification of goods consisting of more than one material or substance shall be determined according to the principles of GRI 3. GRI 3 establishes a hierarchy of methods of classifying goods which fall under two or more headings. The first method of classification is provided for in GRI 3(a), under which the heading which provides the most specific description is to be preferred to a heading which provides a more general description. However, when two or more headings each refer to part only of the materials or substances in a composite good 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 than the other. Explanatory Note V to Rule 3(a). In such circumstances, the classification of such goods shall be determined by GRI 3(b) or (c).

GRI 3(b) provides that “composite goods made up of different components” and “goods put up in sets for retail sale” are to be classified as if they consisted of the component which gives them their essential character. However, for GRI 3(b) to apply, the combination of articles must meet the definition of “composite good” or “goods put up in sets for retail sale.”

Composite goods are goods made up of different components in which the components are attached to each other to form a practically inseparable whole or goods with separable components provided that the components are adapted one to the other, mutually complementary and together form a whole which would not normally be offered for sale in separate parts. Explanatory Note IX to GRI 3(b).

Customs has generally found that cosmetic products imported in substantial, reusable cosmetics bags, do not form composite goods. See Headquarters Ruling Letter (HQ) 959563, dated October 5, 1998, HQ 957707, dated June 26, 1995 and HQ 953537, dated June 16, 1993. In HQ 953537, Customs classified a plastic cosmetics case imported with cosmetics and cosmetics brushes separately. Customs stated that the cosmetic products complemented each other but the case was unique in that it served to collect, organize, transport and store not only the cosmetic components with which it was entered, but other items such as jewelry and hairwear. The case’s dissimilarity from the other components and the presence of additional compartments demonstrated that the cosmetic products and container were not mutually complementary and not adapted to be used to together. Customs also found that the components were of a kind normally offered for sale separately. See also HQ 960009, dated October 16, 1997 (travel pouches of a kind sold at retail on their own merits as travel or toiletry bags and not of a kind normally used in the packaging of toiletries/cosmetics). Applying this rationale to the instant case, the cosmetics bag and cosmetic products do not constitute a composite good.

The EN state in Note X to GRI 3(b) 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 the users without repacking.

The instant combination of articles meets the first and last criteria of GRI 3(b). The items are classifiable in different headings and the combination will be put up for sale without the need for repacking. However, whether they meet the second criterion of being put together to meet a particular need or carry out a specific activity is questionable.

In HQ 957707, dated June 26, 1995, Customs declined to classify a plastic carrying case imported with cosmetics and cosmetic brushes as a GRI 3(b) set. Customs stated that the cosmetic components provided grooming practice for young girls and that the plastic case served to collect, organize, transport and store the cosmetic components. Customs found that the case and cosmetic components were not put up to meet a particular need or carry out a specific activity. Thus, the components were classified separately. See also HQ 953537, dated June 16, 1993.

In HQ 959563, dated October 5, 1998, Customs declined to classify a toiletry bag imported with a sample bottle of perfume, sample tube of bath gel and a small jar of body cream as a GRI 3(b) set. Customs found that the toiletries were used to enhance one’s appearance and that the bag served to protect, store and carry the toiletries. Since the products met different needs and carried out separate activities, they did not comprise a GRI 3(b) set.

In HQ 959265, dated April 9, 1999, Customs declined to classify a toiletry bag imported with lotions and cleansers as a set under GRI 3(b). Customs stated that the creams and lotions met the activity of skin care. Noting that the bag was twice as large as would be necessary to hold the toiletries and was designed to outlast their use, Customs found that the toiletry case did not sufficiently relate to the other goods to form a set. Customs explained that the bag provided an incentive to purchase the toiletries which was independent of its use with them. Finding an insufficient nexus between the bag and the toiletries to form a set put up for retail sale, Customs classified the items separately.

In the instant case, the cosmetic products are used to enhance one’s appearance and the cosmetics bag serves to protect, store, and carry the cosmetic products. Thus, the components meet different needs, carry out separate activities, and do not comprise a GRI 3(b) set. Furthermore, the instant cosmetics bag was not specifically designed to hold or contain the cosmetic products. The bag is appreciably larger than that required to hold or carry the cosmetic products and will be used to carry additional products. We find that the instant cosmetics bag does not sufficiently relate to the cosmetic products so that a particular need or specific activity can be identified. Thus, the cosmetics bag, cosmetics and cosmetics brushes are classified separately.

Lastly, we note that certain containers may be classified with the articles they are designed to hold if the requirements of GRI 5 are met. In pertinent part, GRI 5(a) states that:

Camera cases, musical instrument cases, gun cases, drawing instrument cases, necklace cases and similar containers, specially shaped or fitted to contain a specific article or set of articles, suitable for long-term use and entered with the articles for which they are intended, shall be classified with such articles when of a kind normally sold therewith.

Although suitable for long-term use and entered with the cosmetic products, we do not consider the soft-sided cosmetics bag to be a container specially shaped or fitted to contain a specific set of articles. See HQ 957707, HQ 953537 and HQ 959563 (cited above). The instant bag is a generic cosmetics bag capable of containing both the articles with which it is entered and additional items. Furthermore, as previously noted, cosmetics cases and cosmetics are normally sold separately. Therefore, GRI 5(a) does not operate to make the container classifiable with its contents.

The Cosmetics Bag is Properly Classified as a Vanity Case of Subheading 4202.12.2050, HTSUSA, in accordance with the decision in Len-Ron Manufacturing Co., Inc. v. United States.

Heading 4202, HTSUSA, provides for “Trunks, suitcases, vanity cases, attache cases, briefcases, school satchels, spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters and similar containers; traveling 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.”

Vanity cases are specifically provided for under subheading 4202.12, HTSUSA. Subheading 4202.92, HTSUSA, provides for other containers not covered by previous provisions of the heading. Travel bags are specifically provided for at the eight-digit level under subheadings 4202.92.15 through 4202.92.45, HTSUSA. Additional U.S. Note 1 to Chapter 42, HTSUSA, explains that:

For the purposes of heading 4202, the expression “travel, sports and similar bags” means goods, other than those falling in subheadings 4202.11 through 4202.39, of a kind designed for carrying clothing and other personal effects during travel, including backpacks and shopping bags of this heading, but does not include binocular cases, camera cases, musical instrument cases, bottle cases and similar containers.

Thus it is clear that classification in the subheadings providing for travel bags is only appropriate when there is no previously occurring tariff provision that covers the merchandise more specifically. Furthermore, Customs notes that GRI 6 directs that only subheadings at the same level are comparable.

Thus the comparison is between “vanity case” and “other” and not between “vanity case” and “travel bag.” Accordingly we must first determine whether the subject merchandise is classifiable as a vanity case.

It appears that Customs initially believed that cosmetics bags were not covered by the term “vanity cases.” As pointed out by the court, the term is not clearly defined by the headings, subheadings, or chapter notes of Chapter 42, HTSUSA. Len-Ron Manufacturing Co., Inc. v. United States, 118 F. Supp. 2d 1266 (2000). Prior to the decision in Len-Ron, Customs had long classified cosmetics bags as travel bags under subheading 4202.92, HTSUSA. See HQ 089073, dated January 7, 1992; HQ 951534, dated August 4, 1992; HQ 954002, dated September 23, 1993; HQ 954963, dated September 20, 1993; HQ 954964, dated September 20, 1992; HQ 954965, dated September 20, 1993; HQ 954966, dated September 20, 1993; HQ 954967, dated September 20, 1993; HQ 954968, dated September 20, 1993; HQ 954969, dated September 20, 1993; HQ 954970, dated September 20, 1993; HQ 954971, dated September 20, 1993; HQ 956666, dated May 30, 1995; HQ 958566, dated February 21, 1996; and HQ 960471, dated April 14, 1998.

However, the Court of International Trade in Len-Ron recently issued a decision which significantly impacts Customs classification of cosmetics bags. The court found that the common meaning of the term “vanity case” included “various forms of the article: a compact; a small handbag or case used by women for carrying cosmetics; and a small luggage bag for cosmetics.” Len-Ron Manufacturing Co., Inc. v. United States, 118 F. Supp. 2d 1266 (2000). Since the court found that the cosmetics bags before the court were prima facie classifiable under subheading 4202.12, HTSUSA, the court did not address classification under subheading 4202.92.4500, HTSUSA. The court also found the cosmetics bags to be prima facie classifiable under subheading 4202.32, HTSUSA, which provides for articles of a kind normally carried in the pocket or handbag. Customs believes that the instant cosmetics bag is too large to be considered of a kind normally carried in the pocket or handbag. Thus, the court determined that cosmetics bags used to contain, organize and segregate cosmetic and toiletry products were properly classified as vanity cases of subheading 4202.12, HTSUSA, rather than as travel bags of heading 4202.92, HTSUSA.

Applying the rational of Len-Ron to the instant case, Customs finds that the subject cosmetics case is encompassed within the court’s definition of the term “vanity case.” Although the subject cosmetics case is believed to be larger than the small bags and cases before the court in Len-Ron, we find that classification of the instant article as a vanity case to be appropriate since the court’s definitions included small luggage bags used by women for carrying cosmetics. Accordingly, the subject cosmetics case is classified as a vanity case of subheading 4202.12, HTSUSA.

Rulings issued by Customs under the provisions of 19 CFR 174 or 177, that are inconsistent with the principles of the Len-Ron decision are revoked or modified by operation of law.

HOLDING:

The cosmetics bag is classified under subheading 4202.12.2050, HTSUSA, the provision for “ . . . : Trunks, suitcases, vanity cases, attache cases, briefcases, school satchels and similar containers: With outer surface of plastics or of textile materials: With outer surface of plastics, Other: Trunks, suitcases, vanity cases and similar containers.” The general column one duty rate is 20% percent ad valorem.

The lipsticks are classified under subheading 3304.10.0000, HTSUSA, the provision for “Beauty or make-up preparations . . . : lip make-up preparations.” The general column one duty rate is “Free.”

The eyeshadows are classified under subheading 3304.20.0000, HTSUSA, the provision for “Beauty or make-up preparations . . . : eye make-up preparations.” The general column one duty rate is “Free.”

The fingernail polishes are classified under subheading 3304.30.0000, HTSUSA, the provision for “Beauty or make-up preparations . . . : manicure or pedicure preparations.” The general column one duty rate is “Free.”

The blushes are classified under subheading 3304.91.0010, HTSUSA, the provision for “Beauty or make-up preparations . . . : Other: Powders, whether or not compressed, Rouges.” The general column one duty rate is “Free.”

The cosmetics brushes are classified under subheading 9603.30, HTSUSA, the provision for “Brooms, brushes . . . : Artists’ brushes, writing brushes and similar brushes for the application of cosmetics.” The general column one duty rate is either 2.6 percent ad valorem or “Free” depending on the value of the brush.

Sincerely,

John Durant, Director
Commercial Rulings Division

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