OT:RR:CTF:CPMMA H313938 AJK
TARIFF NO: 3923.90.00
Ms. Sara Barnes
Phoenix International
18900 – 8th Avenue South
Suite 500
Sea Tac, WA 98148
Mr. Arlen T. Epstein
Tompkins & Davidson, LLP
One Astor Plaza
1515 Broadway
New York, NY 10036-8901
RE: Revocation of NY I82716, NY D88064, and NY N003065; Classification of Empty Cosmetic Container with Brush
Dear Ms. Barnes and Mr. Epstein:
This letter is reference to New York Ruling Letters (NY) I82716, dated June 21, 2002, and NY D88064, dated February 22, 1999, concerning the tariff classification of an empty cosmetic container with a brush. In NY I82716 and NY D88064, U.S. Customs and Broder Protection (CBP) classified the merchandise in heading 9603, Harmonized Tariff Schedule of the United States (HTSUS). We have reviewed the aforementioned rulings, and have determined that the classification of an empty cosmetic container with a brush in heading 9603, HTSUS, was incorrect.
Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. § 1625(c)(1)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057), a notice of the proposed action was published in the Customs Bulletin, Volume 54, No. 48, on December 9, 2020. One comment was received in response to this notice.
FACTS:
The subject merchandise was described in NY I82716 as follows:
The imported item is a mascara brush/case. It consists of a molded plastic and metal tube container with an applicator eyelash brush. When the cap of the tube container is unscrewed, the cap serves as the brush handle. The tube will be filled with mascara after importation.
The subject merchandise was described in NY D88064 as follows:
The merchandise at issue … is components for a mascara pen and consists of a hollow molded plastic tube and applicator brush. The tube will be filled with mascara after importation. The molded plastic cover will be imported separately.
ISSUE:
Whether the empty cosmetic container with a brush is classified in heading 3923, HTSUS, as a plastic article for the conveyance or packing of goods, or heading 9603, HTSUS, as a brush.
LAW AND ANALYSIS:
Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification 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 2 through 6 may then be applied in order.
GRI 3(b) states, in pertinent part:
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.
* * * * * *
The HTSUS provisions at issue are as follows:
3923: Articles for the conveyance or packing of goods, of plastics; stoppers, lids, caps and other closures, of plastics.
9603: Brooms, brushes (including brushes constituting parts of machines,
appliances or vehicles), hand-operated mechanical floor sweepers, not motorized, mops and feather dusters; prepared knots and tufts for broom or brush making; paint pads and rollers; squeegees (other than roller squeegees).
Note 2 to Chapter 39, HTSUS, provides, in pertinent part:
2. This chapter does not cover:
…
(z) Articles of chapter 96 (for example, brushes, buttons, slide fasteners,
combs, mouthpieces or stems for smoking pipes, cigarette holders or the like, parts of vacuum flasks or the like, pens, mechanical pencils, and monopods, bipods, tripods and similar articles).
* * * * * *
The Harmonized Commodity Description and Coding System (HS) Explanatory Notes (ENs) constitute the official interpretation of the HS. While not legally binding or dispositive, the ENs provide a commentary on the scope of each heading of the HS at the international level, and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989).
EN RULE 3(b) provides as follows:
(VIII) 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.
EN 39.23 provides, in pertinent part, as follows:
This heading covers all articles of plastics commonly used for the packing or conveyance of all kinds of products. The articles covered include:
(a) Containers such as boxes, cases, crates, sacks and bags (including cones and refuse sacks), casks, cans, carboys, bottles and flasks.
* * * * * *
As a preliminary matter, we wish to clarify the difference between the subject merchandise in NY I82716 and NY D88064, and the exclusion provision for Chapter 39. First, the empty cosmetic containers with a brush in NY I82716 and NY D88064 have one minor distinguishable character. In NY I82716, the brush of the merchandise is designed for two purposes: (1) to serve as a cap for the molded plastic container while the merchandise is being stored, and (2) to be utilized as a tool to apply the cosmetic that is packed inside the container. The brush in NY D88064, however, is attached to the top of the molded plastic container. As further explained below, the difference in the two subject merchandise does not effectuate change in our analysis.
Note 2 of Chapter 39, which excludes “[a]rticles of chapter 96”, including brushes, from classification under heading 3923, HTSUS, as plastic articles for the conveyance or packing of goods, does not apply to the empty cosmetic container with a brush. Note 2 excludes an item that is classified in chapter 96 at GRI 1; however, heading 9603, HTSUS, only describes the brush portion of the entire good. Thus, the subject merchandise is not excluded from heading 3923, HTSUS, by Note 2 to Chapter 39.
In NY A85166, dated July 2, 1996; and NY N018435, dated October 23, 2007, we found that a mascara container and cap with brush insert was classified in heading 3923, HTSUS as a plastic container for the conveyance of goods. The instant merchandise is substantially similar to that in described in those rulings. As stated in the General EN to Chapter 39, chapter 39 encompasses “all articles of plastics commonly used for the packing or conveyance of all kinds of products.” See S.C. Johnson & Son, Inc. v. United States, 415 F. Supp. 3d 1373 (Ct. Int’l Trade 2019). As such, the empty container here is classifiable in heading 3923, HTSUS, even though the cap, which is classified with the container, includes a brush.
Even if resort to GRI 3 is necessary to account for the brush, in order to classify the subject merchandise under GRI 3(b), CBP must identify the component of the subject merchandise that imparts the merchandise with its essential character. “The ‘essential character’ of an article is ‘that which is indispensable to the structure, core or condition of the article, i.e., what it is.’” Structural Industries v. United States, 360 F. Supp. 2d 1330, 1336 (Ct. Int’l Trade 2005). As explained above, the core function of the subject merchandise is to contain and store cosmetics in the molded plastic container upon importation into the United States. The utility of the brush is not realized until the product is filled with the mascara and it is applied to the user’s eyelashes. As imported, however, the good is a container with a brush attached to its cap or body. Hence, the role of the container in relation to the use of the entire good, to convey mascara and its applicator to the purchaser, imparts the essential character of the subject merchandise. Moreover, the molded plastic container accounts for the bulk of the merchandise. Thus, even under the analysis of GRI 3(b), the empty cosmetic container with a brush is classified in heading 3923, HTSUS.
Pursuant to GRI 1 and GRI 3(b), the empty cosmetic container with a brush is classified in heading 3923, HTSUS, as “[a]rticles for the conveyance or packing of goods, of plastics; stoppers, lids, caps and other closures, of plastics: [o]ther.” This conclusion is consistent with prior CBP rulings classifying other empty cosmetic containers with a brush and similar articles under heading 3923, HTSUS.
As noted above, we received one comment in response to the notice of the proposed revocation. The commenter argues that the essential character of the empty cosmetic container with a brush is imparted by the brush under GRI 3(b). As stated above, however, the essential character of the merchandise is imparted by the container because it is the part that is used immediately upon importation and serves the core function of containing cosmetics prior to sale to final consumers. Therefore, the empty cosmetic container with a brush is classified in heading 3923, HTSUS.
HOLDING:
By application of GRI 1, the empty cosmetic container with a brush is classified in heading 3923, HTSUS, specifically subheading 3923.90.00, HTSUS, which provides for “[a]rticles for the conveyance or packing of goods, of plastics; stoppers, lids, caps and other closures, of plastics: [o]ther.” The 2021 column one, general rate of duty is three percent ad valorem.
Duty rates are provided for your convenience and subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided at www.usitc.gov.
EFFECT ON OTHER RULINGS:
NY I82716, dated June 21, 2002, and NY D88064, dated February 22, 1999, are hereby revoked.
This ruling will become effective 60 days from the date of publication in the Customs Bulletin.
Sincerely,
for
Craig T. Clark, Director Commercial and Trade Facilitation Division