CLA-2 CO:R:C:G 086756 SLR

Area Director of Customs
Commercial Operations
New York Seaport
6 World Trade Center
Room 425
New York, NY 10048

RE: Internal Advice Request No. 43/89, Concerning the Classification and Marking Requirements for Plastic Compacts from France

Dear Area Director:

This request for Internal Advice was initiated by a letter dated May 30, 1989, from Mr. Walter A. Smith, Import Manager of Len-Ron Manufacturing Co., Inc.

FACTS:

Samples of the compact were submitted in both its imported condition and in the condition in which it will be sold. The submitted sample is an injection molded plastic compact fitted with a mirror in the top lid and molded with two empty compartments in the bottom half. Subsequent to importation, a metal pan filled with compressed powder will be permanently glued into one of the compartments. A cosmetic brush will be packed into the other compartment. The filled container will be placed into a velvet pouch, then packaged for sale in a paperboard carton. The compact will be sold at retail in a filled condition. After its contents have been exhausted, the compact will be disposed of by the retail consumer.

Len-Ron Maufacturing filed two entries -- 456-0283796-0 dated March 31, 1989 and 456-0283990-9 dated April 22, 1989 -- with Customs at the New York Seaport. The compacts were classified as articles of a kind normally carried in the pocket or in the handbag, with an outer surface of plastic sheeting, in subheading 4202.32.2000, Harmonized Tariff Schedule of the United States Annotated (HTSUSA). It was also determined that the compacts required country of origin marking.

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Mr. Smith of Len-Ron Manufacturing objects to the determinations made by the New York Seaport. He maintains that the subject compacts are more properly classifiable as articles for the packing or conveyance of goods, of plastic, in subheading 3923.10.0000, HTSUSA. Moreover, he argues that the compacts are exempt from marking requirements.

ISSUES:

I. Whether the subject compacts are classifiable as articles of a kind normally carried in the pocket or in the handbag, with an outer surface of plastic sheeting, in subheading 4202.32.2000, HTSUSA, or as articles for the packing or conveyance of goods, of plastic, in subheading 3923.10.0000, HTSUSA.

II. Whether the subject compacts are exempt from Customs country of origin marking requirements.

LAW AND ANALYSIS:

Classification

Classification of merchandise under the HTSUSA is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification is determined according to the terms of the headings and any relative section or chapter notes.

No single heading within the Nomenclature provides for the product in issue -- a plastic compact which contains a mirror. As a composite good, the subject article must be classified according to GRI 3. GRI 3(b) provides that composite goods made up of different components shall be classified as if they consisted of the component which gives them their essential character. The Explanatory Notes to GRI 3(b) indicate that essential character may be determined by considering "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."

It is our determination that the molded plastic represents the essential character of the compact. The plastic component gives shape to the compact and keeps the beauty accessories in their place.

Subheading 4202.32.2000, HTSUSA, provides for articles of a kind normally carried in the pocket or handbag, with an outer surface of plastic sheeting. We believe that the subject compacts qualify as articles of a kind normally carried in the

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pocket or handbag. Nonetheless, Heading 4202 provides only for "similar containers, of leather or of composition leather, of plastic sheeting, of textile materials, of vulcanized fiber or paperboard, or wholly or mainly covered with such material." The question becomes whether the outer surface of the compacts is of plastic sheeting.

Dictionaries define the words "sheet" and "sheeting" as follows:

The Random House Dictionary of the English Language (Unabridged ed. 1983) at p. 1313:

sheet 2. a broad, relatively thin, surface layer or covering. 3. a relatively thin, usually rectangular form, piece, plate, or slab as of photographic film, glass, metal, etc.

sheeting 1. the act of covering with or forming into a sheet or sheets.

Webster's Third New International Dictionary of the English Language (Unabridged ed. 1986) at p. 2091:

sheet 5: A broad thinly expanded portion of metal or other substance.

sheeting 1: a material in the form of sheets * * * b: material (as a plastic) in the form of continuous film * * *.

See also Sekisui Products, Inc. v. United States, 63 Cust. Ct. 123, C.D. 3885 (1969) which cites the Webster's definition of "sheets" with approval.

It is our position that the above-cited definitions require a finding that an article which is made directly from a mass of plastic which never becomes a "sheet" or "sheeting" and which never has a "sheet" or "sheeting" applied to its surface cannot be classified under subheading 4202.32.2000, HTSUSA.

As to whether the compacts when imported empty are articles for the conveyance or packing of goods, we note that the Explanatory Note for Heading 3923, HTSUSA, provides that the heading covers all articles of plastic commonly used for packing or conveyance of all kinds of products. Inasmuch as the subject compacts are cases used to convey a brush and some type of cosmetic, they are classifiable under subheading 3923.10.0000, HTSUSA, as articles for the conveyance or packing of goods, of plastics: boxes, cases, crates, and similar articles.

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Country of Origin Marking

Section 304 of the Tariff Act, as amended, (19 U.S.C. 1304) provides that all articles of foreign origin imported into the United States shall be legibly and conspicuously marked to indicate the English name of the country of origin to an ultimate purchaser in the United States. Section 134.24(c)(1) of the Customs Regulations provides that when disposable containers or holders are imported by persons or firms who fill or package them with products they sell, these persons or firms are the "ultimate purchasers" of the containers or holders. In such a case, the containers may be excepted from individual marking under 19 U.S.C. 1304(a)(3)(D) as long as the outside wrappings or packages containing the containers are marked to indicate the country of origin of the containers.

In HQ 722170 of July 18, 1983, and HQ 722547 of August 30, 1983, Customs ruled that plastic cosmetic compacts must be individually marked. Customs later reconsidered its position in HQ 723905 of March 20, 1984. In that ruling, Customs affirmed its view that plastic compacts imported empty to be filled in the U.S. with U.S. made cosmetics were not disposable containers subject to 19 CFR 134.24(c)(1) because compacts are not merely containers, but rather are substantial, functional articles in their own right. As support for this position, Customs cited rulings classifying compacts as "flat goods" under item 706.60 (706.61) of the Tariff Schedules of the United States (TSUS) rather than "containers...chiefly used for the packing, transporting or marketing of merchandise" under item 772.70, TSUS.

In HQ 731863 of February 14, 1990, Customs altered its stance regarding the individual marking of empty cosmetic compacts. That ruling reveals that:

Customs does not regard [the subject plastic cosmetic compact imported empty and filled in the U.S. with powdered blush made in the U.S.] as a substantial, functional article in it own right. It is not reasonable to assume that a retail purchaser would buy the finished product for the compact. Although plastic compacts could be refilled, this company does not sell refills and refill blush for this particular compact is not available in the marketplace. When the blush is used up, the consumer would dispose of the compact and buy a new compact containing blush. As offered in the market, this compact is a disposable container imported empty to be filled in the U.S. -5-

Therefore, this item is subject to 19 CFR 134.24(c)(1) which excepts the compact from individual marking and only requires that the container in which the compacts are imported be marked with the country of origin of the compacts.

That ruling also emphasized that under the Harmonized Tariff Schedule, injection molded plastic compacts were classifiable in subheading 3923.10.0000, HTSUSA, the provision for articles for the conveyance or packing of goods, of plastics, boxes, crates, and similar articles.

Here, the compacts imported by Len-Ron are not constructed to accommodate refills. Moreover, once the cosmetic powder is used up, the compacts will be discarded. The instant compacts, therefore, are disposable containers and when imported empty, are subject to the marking exception provided for in 19 CFR 134.24(c)(1).

HOLDING:

The subject compact is classifiable in subheading 3923.10.0000, HTSUSA, which provides for articles for the conveyance or packing of goods, of plastics, boxes, crates, and similar articles, dutiable at 3 percent ad valorem.

The subject compact is excepted from marking pursuant to 19 CFR 134.24(c)(1) and only the container in which the compact is imported must be marked with the country of origin of the compact.

You should furnish a copy of this decision to the inquirer.

Sincerely,

John Durant, Director
Commercial Rulings Division