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HQ 964716




September 12, 2002

CLA-2: RR:CR:TE 964716 ASM

CATEGORY: CLASSIFICATION

TARIFF NO.: 6307.90.9889

Ms. Barbara Y. Wierbicki
One Astor Plaza
1515 Broadway
New York, N.Y. 10036-8901

RE: Request for Binding Ruling; Textile Covered Collapsible Box

Dear Ms. Wierbicki:

This is in response to your request on behalf of your client, Avon Products, Inc., dated November 6, 2000, concerning the classification under the Harmonized Tariff Schedule of the United States Annotated of a textile covered collapsible box. A sample has been provided with the request.

FACTS:

The subject article is identified as “Colors 4 Q Blockbuster” item #PP100352, and is described by the importer as a collapsible box for organizing and storing cosmetics. The article is made from man-made fiber woven fabrics that cover cardboard panels and pieces of plastic foam. The various layers are glued together and sewn along the edges of each panel creating four adjoining panels along the base. The panels forming the sides of the tray have a single ribbon attached at the upper corner which have been designed to form the rectangular box and hold the sides together. The article is rectangular in shape and measures approximately 5.25 x 7.25 inches at the base with side walls that are 5 inches high. The four side panels are each the shape of a trapezoid with two sides measuring, at the widest point, approximately 6.5 inches wide and the longer two sides approximately 8.5 inches wide. The two shorter side panels have been fitted with two sewn pockets on the interior; the two longer side panels have three interior sewn pockets.

ISSUE:

What is the proper classification for the merchandise?

LAW AND ANALYSIS:

Classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods 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 heading 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, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

Customs begins by noting that the subject article is prima facie classifiable in more than one heading. The applicable headings are 3926, HTSUSA, covering other articles of plastics (foam padding); 4823, HTSUSA, covering other articles of paperboard (cardboard panels); and 6307, HTSUSA, covering other articles of textile materials (entire exterior surface). Thus, we have found that this article cannot be classified solely on the basis of GRI 1. GRI 2(b) governs the classification of goods when there are mixtures and combinations of materials or substances, and when goods consist of two or more materials or substances. In relevant part, GRI 2(b) states that “The classification of goods consisting of more than one material or substance shall be according to the principles of rule 3.” GRI 3 states, in pertinent part, 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.

In this case, the headings 3926, 4823, and 6307, HTSUSA, each refer to only part of the materials that make up this product. Thus, pursuant to GRI 3(a), we must consider the headings equally specific in relation to the goods. Accordingly, the goods are classifiable pursuant to GRI 3(b).

It is important to note, that in applying a GRI 3(b) analysis, we have characterized the subject article as a composite good because it is composed of different materials which form an inseparable whole. Pursuant to GRI 3(b), such goods are to be classified as if they consisted of the material or component which gives them their essential character.

With respect to determining the essential character of this composite good, the EN to GRI 3(b) provides the following guidance:

(VIII). The factor which determines the 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.

Recently, there have been several Court decisions on “essential character” for purposes of GRI 3(b). These cases have looked to the role of the constituent materials or components in relation to the use of the goods to determine essential character. See, Better Home Plastics Corp. v. United States, 916 F. Supp. 1265 (CIT 1996), affirmed 119 F. 3d 969 (Fed. Cir. 1997); Mita Copystar America, Inc. v. United States, 966 F. Supp. 1245 (CIT 1997), motion for rehearing and reconsideration denied, 994 F. Supp. 393 (CIT 1998), and Vista International Packaging co., v. United States, 19 CIT 868, 890 F. Supp. 1095 (1995). See also, Pillowtex Corp. v. United States, 98-1227, CAFC, 171 F.3d 1370; 1999 U.S. App. LEXIS 4371.

The essential character of the subject merchandise can be determined by comparing each component as it relates to the use of the product. Clearly the textile components provide the most important decorative feature to the article, i.e., print woven textile exterior, textile interior and ten pockets, eight textile ribbons that can be tied into four bows (one at each corner). Further, the textile materials represent the greatest surface area of the article as compared to the interior cardboard panels and foam padding.

In view of the foregoing, it is Customs determination that the article is classifiable pursuant to a GRI 3(b) analysis as an other made up article of textile under heading 6307, HTSUSA. This decision is consistent with prior Customs Headquarters rulings (HQ) involving textile covered boxes, as follows: HQ 955913, dated May 3, 1994; HQ 086774, dated July 17, 1990. With respect to the case you cite in support of your position, please be advised that any Customs rulings that are contrary to the decision in the case of The Item Company v. United States, 19 CIT 1000; 1995 Ct. Intl. Trade LEXIS 179, would be modified or revoked by operation of law.

HOLDING:

The subject merchandise is correctly classified in subheading 6307.90.9889, HTSUSA, which provides for, “Other made up articles, including dress patterns: Other: Other: Other, Other”. The general column one duty rate is 7 percent ad valorem.

Sincerely,

Myles B. Harmon, Acting Director

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