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HQ 966629




October 29, 2003

CLA-2 RR:CR:GC 966629 RSD

CATEGORY: CLASSIFICATION

TARIFF No. 8309.90.00

Ms. Mindy Gao
BchinaB Company
Chrysler Center
666 Third Avenue, 24th floor
New York, New York 10017

RE: Revocation of NY J87481; Lipstick Caps Made of Aluminum

Dear Ms. Gao:

On August 4, 2003, the Director, National Commodity Specialist Division of the Bureau of Customs and Border Protection issued to you NY J87481. In NY J87481, the National Commodity Specialist Division held that a cap for a lipstick tube made of aluminum is classified in subheading 7616.99.50, Harmonized Tariff Schedule of the United States (HTSUS). We have reconsidered the classification of the lipstick caps and we now believe that the classification indicated in NY J87481 is incorrect. This ruling sets forth the correct classification of the lipstick caps.

FACTS:

The merchandise is a cap for a tube of lipstick (item number C-SLO-255-A). The article is made of aluminum and measures approximately 4.75 cm. in length and 1.25 cm. in diameter.

ISSUE:

What is the classification under the HTSUS of the lipstick caps?

LAW AND ANALYSIS:

Classification under the Harmonized Tariff Schedule of the United States (HTSUS) is made in accordance with the General Rules of Interpretation (GRI’s). 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 headings and legal notes do not otherwise require, the remaining GRIs may then be applied.

The Harmonized Commodity Description And Coding System Explanatory Notes (EN’s) constitute the official interpretation of the Harmonized System. While not legally binding on the contracting parties, and therefore not dispositive, the EN’s provide a commentary on the scope of each heading of the Harmonized System and are thus useful in ascertaining the classification of merchandise under the system. Customs believes the EN’s should always be consulted. See T.D. 8980, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

The HTSUS provisions under consideration are as follows

Other articles of aluminum:

Other:

7616.99 Other:

7616.99.50 Other.

Stoppers, caps, and lids (including crown corks, screw caps and pouring stoppers), capsules for bottles, threaded bungs, bung covers, seals and other packing accessories, and parts thereof, of base metal:

Other.

EN 83.09 states:

The heading covers a range of articles of base metal (often with washers or other fittings of plastics, rubber, cork, etc.) used for corking or capsuling drums, barrels, bottles, etc., or for sealing cases or other packages.

The heading includes:

(1) Metal stoppers, caps and lids, e.g., crown corks, crown caps or crown seals; stoppers, caps and covers of the screw, clip,
lever, spring, etc., types as used for corking or capping beer bottles, mineral water bottles, preserve jars, tubular containers or the like.

In NY B84461, dated May 7, 1997, Customs classified plastic lipstick caps that were imported separately from the lipstick tubes in subheading 3923.50.00,HTSUS which provides for stoppers, lids, caps and other closures, of plastics. We note that the language of subheading 3923.50.00, HTSUS is very similar to the language of heading 8309, HTSUS, except that it applies to articles of plastic rather than of articles of base metal. Accordingly, although the subject lipstick caps are made of aluminum rather than plastic, following NY B84461, we believe that the subject lipstick caps should be classified in the analogous provision covering similar articles that are made of base metal. This would mean that the aluminum lipstick caps are classified in subheading 8309.90.00, HTSUS.

In addition, under GRI 3(a), goods are classified in the heading which provides the most specific description. GRI 3(a) states:

When by application of rule 2(b) or for any other reason, goods are prima facie, classifiable under two or more headings, classification shall be effected as follows:

(a) The heading which provides the most specific description shall be preferred to headings providing a more general description.

In this instance, heading 8309, HTSUS, in providing for caps, lids and other similar type articles of base metal, provides a more specific description than heading 7316, HTSUS, which provides for a more general description as other articles of aluminum. Accordingly, we conclude that the aluminum lipstick caps are classified in subheading 8309.90.00, HTSUS.

HOLDING:

The lipstick caps are classified in subheading 8309.90.00, HTSUS, as: “Stoppers, caps, and lids (including crown corks, screw caps and pouring stoppers), capsules for bottles, threaded bungs, bung covers, seals and other packing accessories, and parts thereof, of base metal: Other.”

EFFECT ON OTHER RULINGS:

NY J87481 dated August 4, 2003, is revoked. In accordance with 19 U.S.C. 1625(c), this ruling is effective immediately.

Sincerely,

Myles B. Harmon Director,

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