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HQ 964849




August 4, 2001

CLA-2 RR:CR:GC DBS

CATEGORY: CLASSIFICATION

TARIFF NOS.: 3304.10.00, 3304.99.50, 3926.10.00, 4820.30.0020, 4910.00.20, 7009.92.10, 9603.30.6000, 9616.20.00

Port Director
U.S. Customs Service
9777 Via de la Amistad
San Diego, CA 92154

RE: Protest 2501-00-100049; cosmetic sets; packaging.

Dear Port Director:

This is our decision on Protest 2501-00-100049, filed on behalf of Markwins International Corporation by counsel, against your classification under the Harmonized Tariff Schedule of the United States (HTSUS), of cosmetic sets. The entries were liquidated on June 30, 2000, and this protest timely filed on September 28, 2000. Markwins International has filed protests at multiple ports that involve substantially similar goods. A list of the majority of entries protested is attached. In accordance with section D(1)(e) of Customs Directive #099-3550-065, dated August 1, 1993, this protest has been designated the “lead” protest.

FACTS:

The sets subject to this protest are the Beauty Planner #79263, and the Color Medley #88962. Samples of the Beauty Planner #79263 and the Color Medley #779973 were submitted. The Nail Medley #79672 was entered at the same time and appears on the same Customs Form 7501, but it is listed as being not subject to this protest. Accordingly, it is described herein for clarity but is not addressed further. In addition, though the Color Medley sample carries a different stock number, counsel for the Protestant confirmed that it is identical in all material aspects to the Color Medley subject to the protest. The articles are described as follows:

The Beauty Planner #79263 consists of a seven-ringed binder constructed with a base of paperboard that is covered on both the exterior and interior surfaces with pink plastic. There is a layer of plastic foam material between the exterior plastic layer and the paperboard stiffener. On the interior surface are flat clear plastic flaps onto which are sewn two pockets for business and credit cards. The binder contains two plastic zippered compartments, which are pencil pouches the size of the binder, and one coated paper insert that provides a twelve-month calendar on one side, and a lined sheet designated for names and phone numbers on the reverse. The first pouch contains a mirror backed in plastic, and a fitted plastic tray with three tubes of body glitter and three tubes of lip shine. The second pouch contains a make-up brush, a large sponge make-up applicator, a plastic compact with twelve eye shadow pallets, four blush pallets and two sponge eye shadow applicators. Another make-up brush is held in the binder itself by a tubular flap of plastic.

The Color Medley #779973 cosmetic set is packaged in a shrink wrapped fitted plastic tray. The tray contains four bottles of nail polish, four lipsticks, an eyeliner pencil, a lip liner pencil, a large blush brush, a make-up brush, a large sponge applicator, a mirror backed in plastic, and four plastic cases each containing nine shades of eye shadow, one blush, a small make-up brush and a small sponge make-up applicator.

The Nail Medley #88662 cosmetic set is packaged in a shrink wrapped fitted plastic tray. The tray contains ten bottles of nail polish, one bottle of hand lotion, a metal nail file, slant tweezers, manicure scissors, cuticle scissors, nail clipper, cuticle trimmers, cuticle pusher, emery board, nail brush and two toe dividers.

You have classified all of the articles individually in various subheadings of the HTSUS. Protestant claims that the articles should be classified as beauty or make-up preparations put up in sets for retail sale in subheading 3304.99.50, HTSUS.

ISSUE:

1) Whether the Beauty Planner and the Color Medley cosmetic sets constitute goods put up in sets for retail sale for purposes of tariff classification.

2) If either is not classified as a set, whether certain packaging should be classified separately from its corresponding cosmetic.

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRIs”). GRI 1 provides that articles are to be classified by the terms of the headings and relative Section and Chapter Notes. For an article to be classified in a particular heading, the heading must describe the article, and not be excluded therefrom by any legal note. In the event that goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) may be utilized. ENs, though not dispositive or legally binding, provide commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. Customs believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The Beauty Planner

We must first address whether or not the Beauty Planner is classifiable as a set put up for retail sale. No single heading describes all of the products in the Beauty Planner. The components must either be considered as a set or classified individually. The components constitute “goods put up in sets for retail sale,” if they satisfy the following criteria set forth in EN (X) to GRI 3(b). Goods are classified as sets put up for retail sale if they:

(a) consist of at least two different articles which are, prima facie, classifiable in different headings. Therefore, for example, six fondue forks cannot be regarded as a set within the meaning of this Rule;

(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).

You are correct that the Beauty Planner cannot be classified as a set for tariff purposes. Although the goods are prima facie classifiable in at least two headings, and they are put up in a manner suitable for direct sale, the Beauty Planner fails the second criterion because all of the articles do not meet a particular need or carry out a specific activity. The specific activity intended by the merchandise at issue is making oneself up. The cosmetics, applicators, brushes and mirror are used together to perform this activity. They are contained together in the zippered pouches which are bound into the binder. A case, holder or container is generally included with the other articles in the set unless the container detracts from the classification as a set. The container should be sufficiently related to the goods contained in it. It should be designed to carry or hold the goods of a set and intended to be used together with the other goods to meet a particular need or carry out a specific activity. Containers that do not satisfy both criteria are generally not classifiable as sets. Further, the burden is on the importer to show how the container is linked. See Informed Compliance Publication, The Classification of Sets under the HTS, dated September, 1999, and HQ 957960, dated February 5, 1996 (candies in glass jars).

The container, consisting of the binder and pencil pouches, is not sufficiently related to make-up preparations. The cosmetics, applicators and mirror are for making oneself up, and the binder and pouches are designed for school- or office-related functions. In HQ 957960, dated February 6, 1996, we stated that although a jar acts as a holder for candy, its normal function is an all-purpose household storage jar. Similarly, though the subject binder and pencil pouches hold beauty or make-up preparations here, the normal function of these items is to carry school supplies and articles of stationary. In addition, the importer has not satisfied the burden of proving that the make-up preparations are intended to be used together to meet the specific activity. Therefore, the Beauty Planner cannot be classified as a set. The components of the Beauty Planner must be classified individually.

Next we must address the treatment given to the goods upon entry. You had liquidated the goods based on individual classifications. Although this was appropriate, several of the classifications are incorrect. You classified various packing containers separately from the products contained therein. Packing containers are governed in part by GRI 5. GRI 5(b) states as follows:

“(b)Subject to the provisions of Rule 5(a) above, packing materials and packing containers presented with the goods therein shall be classified with the goods if they are of a kind normally used for packing such goods. However, this provision is not binding when such packing materials or packing containers are clearly suitable for repetitive use.”

The general principal is that reusable containers are treated as separate articles and, if appropriate, dutied at the rate applicable to such container. The application of GRI 5(b) is not subjective; it does not depend on how a particular importer uses a container. The focus is on the container itself and the question is whether that container is suitable for repetitive use. The plastic tubes and stoppers for the lip gloss are of a kind normally used for lip gloss, as are the plastic tubes containing the body glitter. None are suitable for repetitive use once the consumer has depleted the cosmetics inside. This is true for the plastic fitted tray, as well.

The plastic compact case with the sponge applicators inside is governed by GRI 5(a), which states, in pertinent part, as follows:

Camera cases, musical instrument cases, gun cases . . . and similar containers, specially shaped or fitted to contain a specific article or set of articles, suitable for long-term use and presented with the articles for which they are intended, shall be classified with such articles when of a kind normally sold therewith. This rule does not, however, apply to containers which give the whole its essential character.

The compact case is molded to fit the pallets of eye shadows and blushes contained therein. It is of a kind normally containing pallets of make-up preparations. It does not impart the essential character of the item, as it is merely to hold and display the make-up preparations. Therefore, it is to be classified with the articles of make-up it contains.

Now that we have determined that the Beauty Planner is not classifiable as a set and the packaging containers should not be classified separately, we must properly classify the articles of the Beauty Planner. Classification is as follows:

The compact contains the eye shadow palette, blush palette and small eye shadow applicators. The plastic container and eye shadow applicators are to be considered within the scope of the terms, beauty or make-up preparations, of heading 3304, HTSUS. The compact and its contents are properly classifiable in subheading 3304.99.50, HTSUS, the provision for “Beauty or make-up preparations . . . manicure or pedicure preparations: Other: Other: Other.”

The lip glosses are classifiable in subheading 3304.10.00, HTSUS, which provides for “Beauty or make-up preparations . . . manicure or pedicure preparations: lip make-up preparations.”

The body glitter is of the kind of preparations for care of the skin (other than medicaments) described in EN 33.04(3), The body glitter is properly classifiable in subheading 3304.99.50, which provides for “Beauty or make-up preparations . . . manicure or pedicure preparations: Other: Other: Other.”

The two make-up brushes are classifiable in subheading 9603.30.6000, HTSUS, the provision for "Brooms, brushes . . . squeegees (other than roller squeegees): Artists' brushes, writing brushes and similar brushes for the application of cosmetics: Valued over 10 cents each."

The large sponge make-up applicator is not included in the compact. Therefore, it is properly classifiable in subheading 9616.20.00, HTSUS, which provides for “Scent sprayers and similar toilet sprayers, and mounts and heads therefore; powder puffs and pads for the application of cosmetics or toilet preparations: Powder puffs and pads for the application of cosmetics or toilet preparations.”

The mirror included in the Beauty Planner, which is backed in plastic, was originally classified under subheading 3924.90.55, HTSUS, as tableware, kitchenware, other household articles and toilet articles, of plastic, whereas a substantially similar mirror found in the Color Medley set entered at the same time was classified in subheading 7009.92.10, HTSUS. EN 70.09 specifically enumerates toilet mirrors backed in plastic. Therefore, heading 7009, not heading 3924, HTSUS, is the appropriate heading under which to classify the mirror. The mirror backed in plastic is properly classifiable under subheading 7009.92.10, HTSUS, which provides for “Glass mirrors, whether or not framed . . . Framed: Not over 929 cm2 in reflecting area.”

The Beauty Planner binder was originally classified in subheading 3926.90.9800, the basket provision for other articles of plastic and articles of other materials of headings 3901 to 3914. However, subheading 4820.30.0020, the provision for “Registers, account books, notebooks, order books, receipt books, letter pads, memorandum pads, diaries and similar articles, exercise books, blotting pads, binders (looseleaf or other), folders, file covers, manifold business forms, interleaved carbon sets and other articles of stationary, of paper or paperboard; albums for samples or for collections and book covers (including cover boards and book jackets) of paper or paperboard: Binders (other than book covers), folders and file covers: Looseleaf binders,” specifically provides for the binder.

Moreover, EN 48.20(3) states that the heading includes binders designed for holding loose sheets, specifically referring to ring binders. The EN also states that goods of the heading may be bound with materials other than paper (e.g., leather, plastics or textile material) and have reinforcements or fittings of metal, plastics, etc. The ring binder is bound in PVC plastic and fitted with metal rings. Subheading 4820.30.0020, HTSUS, provides most specifically for this article as a looseleaf binder.

The zippered pouches were originally classified under heading 4202, HTSUS. We believe they should be classified as office or school supplies under heading 3926. Heading 4202 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 or of textile materials, of vulcanized fiber or of paperboard, or wholly or mainly covered with such materials or with paper.

Additional U.S. Note 1 to Chapter 42, HTSUS, states:

For purposes of heading 4202, the expression 'travel, sports and similar bags' means goods... of a kind designed for carrying clothing and other personal effects during travel, including backpacks and shopping bags of this heading...

The EN to heading 4202, HTSUS, states that this heading does not cover "[a]rticles which, although they may have the character of containers, are not similar to those enumerated in the heading..."

We have determined that a pouch such as the one present here is not similar to those enumerated in heading 4202, HTSUS, although it is designed for personal effects during travel (i.e., moving from one location to another). In HQ 085526, dated December 21, 1989, we stated that the pencil pouches were not classifiable in heading 4202, HTSUS, because they were designed to be carried inside a looseleaf binder and they were considered too large to be placed in the pocket or handbag. In HQ 955660, dated September 27, 1994, we reiterated the distinction between pencil pouches with binder holes and those designed to be carried in the pocket or handbag. Again in HQ 962369, dated November 2, 1999, we identified the pouch with binder holes as an article not of Chapter 42, but of Chapter 39, HTSUS. The pencil pouches in the Beauty Planner were designed with binder holes to be carried inside a looseleaf binder, and not to be carried in a pocket or handbag, or by itself. Accordingly, the two pencil pouches are more specifically provided for in subheading 3926.10.00, HTSUS, the provision for “Other articles of plastic and articles of other materials of headings 3901 to 3914: Office or school supplies.”

The paper insert is also separately classifiable. Note 11 of Chapter 48, HTSUS, states that, “[e]xcept for articles of heading 4814 or 4821, paper, paperboard, cellulose wadding and articles thereof, printed with motifs, characters or pictoral representations, which are not merely incidental to the primary use of the goods, fall in Chapter 49.” The insert has a two-year calendar printed on the side facing up as one opens the binder. The bottom side has printed blank lines designated for names and phone numbers. Both types of printing serve a utilitarian purpose, functioning beyond mere paper. Further, there is no space provided for making notations on the calendar, such as would be provided in a Chapter 48 agenda or planner. In addition, anything may be written on the blank lines of the bottom side, the printing on it indicates that it is intended to be used as a phone list. Accordingly, the insert is not an article of paper but an article of printed matter of Chapter 49.

Heading 4910, HTSUS, provides for printed calendars of any kind. Derived from Note 11 of Chapter 48, EN 49.10 states that the printing must give the article its essential character. See e.g. HQ 958153, dated January 16, 1996. The calendar is the first item one sees when the binder is opened. The majority of printed material on the insert consists of the twenty-four individual months that appear on the first side of the paper. Moreover, the fact that the item is called a planner denotes the relevance of the calendar insert. Therefore, we find that the essential character of the paper insert is the printed calendar. The insert is classifiable in subheading 4910.00.20, HTSUS, the provision for “Calendars of any kind, printed, including calendar blocks: Printed on paper or paperboard in whole or in part by a lithograph process: Not over .51mm in thickness.”

Color Medley

The Color Medley (“medley”) qualifies for treatment as a set for retail sale. As stated above, goods put up in a set for retail sale must be contain at least two articles that are prima facie classifiable in different headings. The medley consists of various beauty or make-up preparations and manicure and pedicure preparations, each of which would be classifiable under heading 3304, HTSUS, a mirror, classifiable under heading 7009, HTSUS, a brush, classifiable under heading 9603, HTSUS, and a sponge applicator, classifiable under heading 9616, HTSUS. The articles are prima facie classifiable in different headings. Accordingly, the medley satisfies the first criterion of EN (X) of GRI 3(b).

The medley satisfies the second criterion of EN (X) of GRI 3(b) because the constituent goods are put together to meet a particular need or carry out a specific activity. Like the products in the Beauty Planner, the products in the Color Medley are put together to carry out the specific activity of making oneself up. Even the nail polish, although it is not often applied everyday, as the make-up preparations may be, is a part of the activity to be carried out by this set. The polishes in the set follow the color scheme of the other make-up preparations and specifically match the lipsticks, suggesting that the nail polish was intended to be applied together with the make-up. The goods are put up in a manner suitable for sale directly to users without repacking, as they are displayed in a fitted plastic tray sitting in the bottom half of a paperboard box, all of which is held together by clear shrink wrap. Thus, the Color Medley constitutes goods put up in a set for retail sale.

For all goods that fall under GRI 3(b), EN (VII) states: “In all these cases the goods are to be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.” EN (VIII) to GRI 3(b) states that:

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.

As to goods put up in sets for retail sale, EN (X) to GRI 3(b) states, in pertinent part, that “classification is made according to the component, or components taken together, which can be regarded as conferring on the set as a whole its essential character.” Therefore, we must determine the essential character of the Color Medley.

The eye shadows, rouges, lip liner, eye liner, and lipsticks are beauty or make-up preparations. The role of these goods is that, once applied, they are the visible manifestation of the act of making oneself up. The make-up preparations also make up the majority of the constituent materials in this set by bulk and quantity. Therefore, the make-up preparations impart the essential character of the cosmetic set. Due to the various types of make-up preparations in the set, the set is properly classifiable in subheading 3304.99.50, HTSUS, the provision for “Beauty or make-up preparations . . . manicure or pedicure preparations: Other: Other: Other.

HOLDING:

The protest should be ALLOWED in part and DENIED in part. Products within the Beauty Planner # 79263 are classifiable as follows:

The compact is properly classifiable in subheading 3304.99.50, HTSUS, the provision for “Beauty or make-up preparations . . . manicure or pedicure preparations: Other: Other: other.”

The lip glosses are classifiable in subheading 3304.10.00, HTSUS, which provides for “Beauty or make-up preparations . . . manicure or pedicure preparations: lip make-up preparations.”

The mirror backed in plastic is classifiable under subheading 7009.92.10, which provides for “Glass mirrors, whether or not framed, including rear view mirrors: framed: not over 929 cm2 in reflecting area.”

The body glitter at issue is of the kind of preparations for care of the skin (other than medicaments) described in EN 33.04(3), The body glitter is properly classifiable in subheading 3304.99.50, which provides for “Beauty or make-up preparations . . . manicure or pedicure preparations: Other: Other.”

The two make-up brushes are classifiable in subheading 9603.30.6000, HTSUS, the provision for "Brooms, brushes...squeegees (other than roller squeegees): Artists' brushes, writing brushes and similar brushes for the application of cosmetics: Valued over 10 cents each."

The large sponge make-up applicator classifiable in subheading 9616.20.00, HTSUS, which provides for “Scent sprayers and similar toilet sprayers, and mounts and heads therefore; powder puffs and pads for the application of cosmetics or toilet preparations: Powder puffs and pads for the application of cosmetics or toilet preparations.”

The Beauty Planner binder is classifiable in subheading 4820.30.0020, which provides for “Registers, account books, notebooks, order books, receipt books, letter pads, memorandum pads, diaries and similar articles, exercise books, blotting pads, binder (looseleaf or other), folders, file covers, manifold business forms, interleaved carbon sets and other articles of stationary, of paper or paperboard; albums for samples or for collections and book covers (including cover boards and book jackets) of paper or paperboard: Binders (other than book covers), folders and file covers: Looseleaf binders.”

The pencil pouches are classifiable in subheading 3926.10.00, HTSUS, the provision for “Other articles of plastic and articles of other materials of headings 3901 to 3914: office or school supplies.”

The paper insert with the printed calendar is classifiable in subheading 4910.00.20, HTSUS, the provision for “Calendars of any kind, printed, including calendar blocks: Printed on paper or paperboard in whole or in part by a lithograph process: Not over .51mm in thickness.”

The Color Medley #779973 is classifiable as a set for retail sale in subheading 3304.99.50, HTSUS, the provision for “Beauty or make-up preparations . . . manicure or pedicure preparations: Other: Other: Other.”

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.

Sixty days from the date of the decision the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

John Durant, Director
Commercial Rulings Division

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