HQ 082051: Internal Advice Request No. 85/87 Concerning the Tariff Classification of Certain Suntan Lotion Bracelets

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                                      HQ 082051

                                  January 26, 1989


          CLA-2 CO:R:C:G  082051 SR

          CATEGORY:  Classification of a suntan lotion bracelet

          TARIFF NO.:  HTSUS 800.00; 740.41

          District Director of Customs
          880 Front Street
          Rm. 5-S-9
          San Diego, California  92188

          RE:  Internal Advice Request No. 85/87 Concerning the Tariff
               Classification of Certain Suntan Lotion Bracelets

          Dear Sir:

               This request for Internal Advice was initiated by a letter
          dated August 24, 1987, from John V. Mc Nally, Atty-in-Fact for
          Mexican Technology, Inc.

          FACTS:

               The merchandise involved is a suntan lotion bracelet made up
          of U.S. components which are assembled in Mexico.  Rolls of U.S.
          made plastic tubing are sent to Mexico where they are molded,
          cut, and filled with U.S.-made suntan lotion.  Clasps are then
          added and the units are assembled to form one-ring circular
          bracelets.  The finished bracelets are then packed in material of
          U.S. origin and sent back to the United States.

               The "Handy Tan Bracelet" is advertised as a high fashion
          bracelet that comes in four high fashion colors.  The bracelets
          are marketed: "Bangle it, dangle it from the wrists and ankles,
          or hook it onto your bike, tennis bag or beach chair.  Now you
          can work on your tan wherever you go."  The bracelet would be
          very difficult to refill with suntan lotion.

          ISSUE:

               1.  Whether the suntan lotion can be accorded free entry as
          United States goods returned under item 800.00, Tariff Schedules
          of the United States (TSUS).

               2.  Whether the "bracelet" is the usual container for the
          suntan lotion.














                                        - 2 -

          LAW AND ANALYSIS:

                                     ISSUE NO. 1

               Merchandise of U.S. origin which is sent abroad for
          repacking for sale to the ultimate purchaser is accorded free
          entry as United States goods returned in item, 800.00, TSUS, even
          if the packaging materials are not of U.S. origin.  In Border
          Brokerage Company, Inc. v. United States, 65 Cust. Ct. 50, C.D.
          4052, 314 F. Supp. 788 (1970), appeal dismissed, December 23,
          1970, involving the same issue, it was established that the test
          to be applied in item 800.00, TSUS, cases is whether the
          merchandise of American origin has itself (apart from its
          container) been the object of advancement in value or improvement
          in condition while abroad.  The suntan lotion has not been
          advanced in condition, it was only put in packages.

                                     ISSUE NO. 2


               General Headnote 6(b)(i), TSUS, reads as follows:

                   6. Containers or Holders for Imported Merchandise.  For
               the purposes of the tariff schedules, containers or holders
               are subject to tariff treatment as follows: * * *

                   (b)  Not Imported Empty:  Containers or holders if
               imported containing or holding articles are subject to
               tariff treatment as follows:
                     (i)  The usual or ordinary types of shipping or
               transportation containers or holders, if not designed for,
               or capable of, reuse, and containers of usual types
               ordinarily sold at retail with their contents, are not
               subject to treatment as imported articles.  Their cost,
               however, is, under section 402 or section 402a of the tariff
               act, a part of the value of their contents and if their
               contents are subject to an ad valorem rate of duty such
               containers or holders are, in effect, dutiable at the same
               rate as their contents, except that their cost is deductible
               from dutiable value upon submission of satisfactory proof
               that they are products of the United States which are being
               returned without having been advanced in value or improved
               in condition by any means while abroad.



















                                        - 3 -

               In determining whether containers holding imported
          merchandise are usual or unusual containers the court in United
          States v. Hohner et al., 4 Ct. Cust. App. 122, T.D. 33393 (1913),
          stated that Congress intended to prevent the importation, under
          the guise of a covering or container, of articles having a
          substantial, material and valuable use for purposes other than
          that of holding or containing the imported merchandise.  It
          provided the following elements to be considered in determining
          whether a particular container is an unusual one: whether it
          becomes a subject of trade or commerce; if it is generally
          devoted to other uses, its adaptability for which are important
          inducements to the consumer to purchase it with its contents; if
          it materially enhances the value of the goods to the consumer;
          and if the cost is considerably greater than that of other
          containers.

               The container at issue is called the "Handy Tan Bracelet."
          It is advertised as a high fashion bracelet with suntan lotion
          inside, and it comes in 4 high fashion colors.  The bracelet
          would not become a subject of trade or commerce because it is not
          refillable and would probably be thrown away when the contents
          were empty.  However, the container is designed for use as a
          bracelet as well as a container.  The adaptability of the
          container to be worn or hooked to a bike or a backpack is an
          inducement to the consumer to purchase the bracelet with its
          contents.  This inducement is also suggested by the fact that the
          bracelet contains only one ounce of lotion when most sun tan
          lotion is sold in four ounce or larger containers.  The bracelet
          does enhance the value of the goods to the consumer.  The
          importer's advertisements say the customer won't just be buying
          suntan lotion, they'll be buying the latest fashion.  According
          to the data submitted by the importer, the bracelet costs more
          per unit than does the suntan lotion.  It is a more costly method
          of packaging than the normal containers.

          HOLDING:

                                     ISSUE NO. 1

               The merchandise of American origin, the suntan lotion, has
          not been advanced in value or improved in condition while abroad.
          It has only been packaged.  Therefore, the suntan lotion returns
          free of duty under item 800.00, TSUS, as a product of the United
          States returned after having been exported, without having been
          advanced in value or improved in condition by any process of
          manufacture or other means while abroad.
















                                         -4-

                                     ISSUE NO. 2

               The bracelet is not the usual container for the suntan
          lotion.  It has a substantial, material and valuable use other
          than holding suntan lotion.  The bracelet container is
          classifiable under item 740.41, TSUS, as jewelry and other
          objects of personal adornment, valued over 20 cents per dozen
          pieces or parts: other, at a duty rate of 11 percent ad valorem.

               The Harmonized Tariff Schedule of the United States
          Annotated (HTSUSA) became effective on January 1, 1989.  Under
          the HTSUSA the suntan lotion returns free of duty under
          subheading 9801.00.10, as a product of the United States returned
          after having been exported, without having been advanced in value
          or improved in condition by any process of manufacture or other
          means while abroad.  Under General Rule of Interpretation (GRI)
          3(b), HTSUSA, the bracelet filled with suntan lotion is a
          composite good and classified by the component which gives the
          merchandise its essential character.  The essential character is
          imparted by the suntan lotion which is free of duty under
          subheading 9801.00.10, HTSUSA.  Therefore, the entire suntan
          lotion bracelet is entered free of duty.

                                        Sincerely,




                                        John Durant, Director
                                        Commercial Rulings Division