Modification of New York Ruling Letters (NY) G88456 and G88457, both dated April 9, 2001

HQ 967518 July 5, 2006 CLA-2 RR:CTF:TCM 967518 TMF CATEGORY: Classification TARIFF NO.: 3304.99.5000 Ms. Nathalie Nutting 17 Avenue de l’Epee, #5 Outremont, Quebec H2V 3S8 Canada Re: Modification of New York Ruling Letters (NY) G88456 and G88457, both dated April 9, 2001 Dear Ms. Nutting: In New York Ruling Letters (NY) G88456 and G88457, both issued to you on April 9, 2001, Customs and Border Protection (CBP) classified, among other things, the “Irione and Les Florales” Eye Contour Gel and “Les Spécifiques” Eye Make-up Remover Lotion in subheading 3304.20.0000, Harmonized Tariff Schedule of the United States, which provides for “Beauty or make-up preparations and preparations for the care of the skin (other than medicaments), including sunscreen or sun tan preparations; manicure or pedicure preparations: Eye make-up preparations.” We have reviewed NY G88456 and G88457 and found them to be in error with regard to the classification of these products. Therefore, this ruling modifies both NY G88456 and G88457. Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C. §1625(c)), 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, 2186 (1993), notice of the proposed modification was published on May 17, 2006 in the CUSTOMS BULLETIN in Volume 40, Number 21. No comments were received in response to this notice. FACTS: New York Ruling Letter (NY) G88456 describes the “Irione and Les Florales” product line as consisting of five products: Facial Rejuvenating Cream Irione, Facial Rejuvenating Oil Irione, Eye Contour Gel, Nourishing Cream and Cleansing Bar. All products are packed for retail sale. The subject of this reconsideration is the Eye Contour Gel. New York Ruling Letter (NY) G88457 describes the “Les Spécifiques” product line as consisting of five products: Eye Make-up Remover Lotion, Regenerative Face Mask, Purifying Mask, Cleansing Milk and Tonic Lotion. All products are packed for retail sale. The subject of this reconsideration is the Eye Make-up Remover Lotion. ISSUE: What is the classification of the “Irione and Les Florales” Eye Contour Gel and “Les Spécifiques” Eye Make-up Remover Lotion? LAW AND ANALYSIS: Merchandise is classifiable under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative Section or Chapter Notes. When goods cannot be classified solely on the basis of GRI 1 and if the terms of the headings and any relative section or chapter notes do not require otherwise, the remaining GRIs 2 through 6 may be applied. Additionally, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) are the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). Heading 3304 covers beauty or make-up preparations and preparations for the care of the skin (other than medicaments), including sunscreen or sun tan preparations. Cosmetics or makeup are defined in the Encyclopedia Britannica as “substances to enhance the beauty of the human body, apart from simple cleaning.” Subheading 3304.20.000 provides for eye makeup preparations. Goods classified in this subheading are limited to products that are used to beautify the eye area. In this case, the subject eye contour gel is used for improving the condition of the eye area. With regard to the subject eye makeup remover, we find that it is not for beautification, but for removal of makeup. Thus, it is the opinion of this office that products such as the goods at issue are more appropriately classified with other skincare products that are used for cleansing and moisturizing the skin within subheading 3304.99.5000, which provides, in pertinent part, for skin preparations. HOLDING: “Irione and Les Florales” Eye Contour Gel and “Les Spécifiques” Eye Makeup Remover Lotion are classifiable in subheading 3304.99.5000, which provides for “Beauty or make-up preparations and preparations for the care of the skin (other than medicaments), including sunscreen or sun tan preparations; manicure or pedicure preparations: Other: Other: Other.” The general column one duty rate is FREE. EFFECT ON OTHER RULINGS: NY G88456 and NY G88457, both dated April 9, 2001, are hereby modified. In accordance with 19 U.S.C. §1625(c), this ruling will become effective 60 days after its publication in the CUSTOMS BULLETIN. Sincerely, Myles B. Harmon, Director Commercial Trade and Facilitation Division