CLA-2 RR:CR:TE 959265 gah

Mr. Louis S. Shoichet
Tompkins and Davidson
One Astor Plaza
1515 Broadway, 43rd floor
New York, NY 10036

RE: Modification of NY ruling A80575 dated April 2, 1996, plastic sheeting toiletry bag; FTZ; not a travel set of heading 9605, not a 3(b) set with U.S. origin toiletries

Dear Mr. Shoichet:

This is in regard to your letter of May 22, 1996, requesting reconsideration of New York ruling (NY) A80575 that was issued to you on April 2, 1996, which addressed the tariff classification of a Mother’s Day toiletry gift set produced for Avon under the Harmonized Tariff Schedule of the United States, Annotated (HTSUSA). We have reviewed this ruling and determined that it is incorrect as to the treatment of U.S. goods combined with foreign goods in a Foreign Trade Zone and then entered into the customs territory of the United States.

Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625(c)(1), notice of the proposed modification of NY A80575 was published on March 3, 1999, in the Customs Bulletin, Volume 33, Number 8/9.

FACTS:

The travel toiletry bag is imported from China into a Foreign Trade Zone (FTZ) in nonprivileged status. The bag, which is not specially shaped or fitted, is made of clear polyvinyl chloride (PVC) plastic, trimmed in gold-toned plastic including its handle. The bag’s dimensions are 6 1/2 by 3 by 4 3/4 inches. It has a short handle across the top of its rectangular shape, is zippered around the top edge, and resembles a small handbag or train case in appearance. In the FTZ, U.S. origin lotions and cleanser, full-sized and in plastic containers are placed in the bag with tissue paper, which in turn is packaged in a cardboard box. The bag and contents is exported from the FTZ and imported into the customs territory of the U.S.

ISSUE:

Whether the gift set is classifiable as a travel set of heading 9605, a set put up for retail sale, or separately classifiable by article?

LAW AND ANALYSIS:

Classification of merchandise 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 is determined according to the terms of the headings and any relative section or chapter notes. Merchandise that cannot be classified in accordance with GRI 1 is to be classified in accordance with subsequent GRI.

Nonprivileged foreign merchandise is subject to tariff classification in accordance with its character, condition, and quantity at the time of transfer from the FTZ to customs territory at the time the entry or entry summary is filed with Customs. 19 C.F.R. 146.65(a)(2). Therefore, the article to be classified is the complete gift set.

Heading 9605, HTSUSA, covers travel sets for personal toilet, sewing or shoe or clothes cleaning (other than manicure and pedicure sets of heading 8214). The heading’s Explanatory Note (EN) describes travel sets in more detail. While the EN are not legally binding, they are instructive as to the intended scope of headings in the Harmonized System. T.D. 89-80, 54 F.R. 35127, 35128 (Aug. 23, 1989). The EN states that travel sets consist of articles individually falling in different headings of the nomenclature or consist of different articles of the same heading. The toiletry bag is classifiable in heading 4202, HTSUSA, the eye care cream, facial skin moisturizer and face cream are classified in heading 3304, HTSUSA, and the face cleanser is classified in heading 3402, HTSUSA.

Toilet sets are further described as a set of articles presented in a case of leather, fabric or plastics, containing, e.g., molded plastic boxes, brushes, a comb, scissors, tweezers, a nail file, a mirror, a razor holder and manicure instruments. While these are only exemplars, they suggest a range of implements and containers that aid in different aspects of one’s personal toilet. Personal toilet is defined as pertaining to washing and dressing oneself. See 2 Compact Ed., Oxford English Dictionary 3342 (1987). The skin care articles at issue here form part of one’s personal toilet, and thus meet this common meaning.

You argue that the skin care articles meet the requirements set forth in the EN for GRI 3(b) sets put up for retail sale, and that those criteria should apply in the finding of a travel set. Heading 9605 is a GRI 1 classification. As a legal matter, classification in that provision pertains if the goods at issue are specifically described therein, that is, they meet the terms of the heading, and any related legal notes. Resort to GRI 3(b) is not necessary for classification in heading 9605, and we decline to do so.

In your submission of May 22, 1996, you cite HQ 951486, in which we opined that the size of the case classifiable as part of a heading 9605 travel set need not be restricted to a size which could contain only the articles sold therewith. You extend that reasoning to the proposition that toiletry tubes, bottles or jars within 9605 travel sets need not be empty to remain a part of a travel set. We agree that such containers need not be empty. If they are, they should surely be refillable.

You argue that there is no basis to limit the size of a toiletry bottle or jar which may be included in a travel set. The skin care tubes and jars at issue are full-size for the goods they contain. Their contents are useful for weeks of skin preparation. The legal notes and EN do not specifically include or exclude consumable goods such as skin creams within the scope of travel sets. Therefore, it is within Customs purview to construe the tariff meaning of the term. We believe the commercial designation of travel set suggests that a toiletry cream may be in a travel set. We also believe that the attraction of a travel set is that it brings together consumable goods in the amount and size that will be needed for a trip. To carry more than is necessary is contrary to the point of a travel set as to consumable goods. There is nothing about the size of the toilet preparations that distinguishes them as specifically suited for travel. We find that the articles do not meet the description of a travel set for personal toilet.

GRI 3(a) indicates that when goods such as the ones at issue are classifiable in more than one heading, headings which refer to part only of the items put up for retail sale, the headings are to be regarded as equally specific. GRI 3(b) states that to meet the criteria of a set put up together for retail sale, articles must, inter alia, be put up for retail sale to meet a particular need or activity. The creams and lotions meet the activity of skin care. However, the toiletry case does not sufficiently relate to the other goods to form a set. It is twice as large as would be necessary to hold the toiletries and is designed to outlast their use. It provides an incentive to purchase the toiletries which is independent of its use with them. We find an insufficient nexus between the bag and the toiletries to form a set put up for retail sale. The goods are therefore classified separately.

In NY A80575, we classified the skin care products in subheading 9801.00.1098, which provides duty free treatment for U.S. origin goods returned after having been exported without having been advanced in value or improved in condition by any other means while abroad. This is incorrect.

The skin care products of U.S. origin are not considered exported by virtue of admission into an FTZ in domestic status. They are put into the FTZ for purposes of packaging them in the toiletry bag and cardboard box, and as such, they are not considered mixed or combined in the FTZ with foreign bags as a result of their placement in those containers. There are no procedural requirements for their entry into the Customs territory when packaged. 19 CFR 146.43(b)-(c). The bag and cardboard box must be entered in order to be brought from the FTZ into the Customs territory. The cardboard box is classified and dutiable with the toiletry bag as GRI 5(b) packing material if of foreign origin. If it is of U.S. origin, the box remains classified with the toiletry bag, but would be entitled to the exemption in the second proviso to 19 U.S.C. 81c(a).

For your information, were they not of U.S. origin, the eye care cream, facial skin moisturizer and face cream would be classifiable in subheading 3304.99.5000, HTSUSA, as other preparations for the care of the skin. The face cleanser in turn would be classifiable in subheading 3402.20, HTSUSA, as a washing preparation put up for retail sale, specifically subheading 3402.20.1000, HTSUSA, if containing aromatic components (benzenoid compounds), or subheading 3402.20.5000, HTSUSA, if not. See Explanatory Note amending supplement five at 521 (Feb. 1998).

HOLDING:

The toiletry bag is classified in subheading 4202.92.4500, HTSUSA, which provides for other travel, sports and similar bags. The applicable general column rate of duty is 20 percent ad valorem.

There are no procedural requirements for entry into the customs territory of the domestic status eye care cream, facial skin moisturizer, face cream and face cleanser when packaged within the toiletry bag and cardboard box. The cardboard box is classified and dutiable with the toiletry bag as GRI 5(b) packing material if of foreign origin. If it is of U.S. origin, the box remains classified with the toiletry bag, but would be entitled to the exemption in the second proviso to 19 U.S.C. 81c(a).

NY A80575 is hereby modified. In accordance with 19 U.S.C. 1625(c)(1), this ruling will become affective 60 days after its publication in the Customs Bulletin.

Sincerely,

John Durant, Director
Commercial Rulings Division