The tariff classification of Elizabeth Grant Biocollasis Complex Crème Collection with Bonus Tote Bag from Canada and China

N079476 October 23, 2009 CLA-2-33:OT:RR:NC:2:240 CATEGORY: Classification TARIFF NO.: 3304.99.5000; 4202.92.4500 Mr. Darren Lair Universal Logistics 125 Commerce Valley Drive West Suite 750 Thornhill, Ontario L3T 7W4 Canada RE: The tariff classification of Elizabeth Grant Biocollasis Complex Crème Collection with Bonus Tote Bag from Canada and China Dear Mr. Lair: In your letter dated October 6, 2009, you requested a tariff classification ruling on behalf of your client Elizabeth Grant International Inc. A sample was submitted with your inquiry for review and will be retained. Elizabeth Grant Biocollasis Complex Crème Collection with Bonus Tote Bag consists of several anti-aging eye and skin care products sold with a bonus tote bag. The advanced cellular age defense cosmetic collection consists of jars containing eye crème, day crème, night crème, regenerating face mask, a bottle of gold complex wrinkle concentrate, and a box containing 5 eye pads. The tote bag is constructed with an outer surface of polyvinyl chloride (PVC) plastic sheeting and contains one interior storage compartment with a textile lining. It is designed and sized to provide storage, protection, portability, and organization to personal effects during travel. The bag measures approximately 22” (W) x 12” (H) x 6” (D). The cosmetics are manufactured in Canada and the tote bag is manufactured in China. It is your opinion that the Elizabeth Grant Biocollasis Complex Crème Collection with Bonus Tote Bag is classifiable in subheading 3304.99.5000, HTSUS, as per General Rule of Interpretation 3(b). You contend that the essential character of the collection is imparted by the eye and skin care products. Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the Harmonized System is such that virtually all goods are classified by application of GRI 1, that is, 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 GRI's may then be applied. The Explanatory Notes (ENs) to the Harmonized Commodity Description and Coding System provide guidance in understanding the scope of the headings and GRIs. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS. As noted above, the Elizabeth Grant Biocollasis Complex Crème Collection with Bonus Tote Bag consists of several eye and skin care products imported with a tote bag. The article cannot be classified by reference to GRI 1 because the components are classifiable in different headings. The eye and skin care products are classifiable in heading 3304, HTSUS, as beauty or make-up preparations. The bonus tote bag is classifiable in heading 4202, HTSUS, as a travel bag. GRI 2(a) is not applicable since it covers incomplete or unfinished goods. GRI 2(b) directs that the classification of goods consisting of more than one material or substance shall be determined according to the principles of GRI 3. GRI 3 establishes a hierarchy of methods of classifying goods which fall under two or more headings. The first method of classification is provided for in GRI 3(a), under the heading which provides the most specific description is to be preferred to a heading which provides a more general description. However, when two or more headings each refer to part only of the materials or substances in a composite good or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description than the other. In such circumstances, the classification of such goods shall be determined by GRI 3(b) or (c). GRI 3(b) provides that “composite goods made up of different components” and “goods put up in sets for retail sale” are to be classified as if they consisted of the component which gives them their essential character. However, for GRI 3(b) to apply, the combination of articles must meet the definition of “composite good” or “goods put up in sets for retail sale.” Composite goods are goods made up of different components in which the components are attached to each other to form a practically inseparable whole or goods with separable components provided that the components are adapted one to the other, mutually complementary and together form a whole which would not normally be offered for sale in separate parts. The EN state in Note X to GRI 3(b) that the term “goods put up in sets for retail sale” means goods which: (a) consist of at least two different articles which are, prima facie, classifiable in different headings; (b) consist of products or articles put up together to meet a particular need or carry out a specific activity: and (c) are put up in a manner suitable for sale directly to the users without repacking. The instant combination of articles meets the first and last criteria of GRI 3(b). The items are classifiable in different headings and the combination will be put up for sale without the need for repacking. Each eye and skin care product is essentially similar in nature and value, complementing each other to provide a skin care regimen. Although the skin and eye care products provide the greatest value, the substance of Explanatory Notes VII and X(b) indicates that the skin and eye care products dissimilarity from the tote bag preclude them from providing the whole article with its essential character. The eye and skin care products are used to enhance one’s appearance and the tote bag serves to protect, store, and carry the eye and skin care products, as well as personal effects during travel. The eye and skin care products packed together with the tote bag meet different needs, carry out separate activities, and do not comprise a GRI 3(b) set. Furthermore, the tote bag was not specifically designed to hold or contain the skin care products. The bag is appreciably larger than that required to hold or carry the eye and skin care products and can be used to carry additional products. We find that the tote bag does not sufficiently relate to the eye and skin care products. The tote bag and the eye and skin care products are not mutually complementary, not adapted to one another, and are not put up to meet a particular need or carry out a specific activity. The goods do not comprise a set and the tote bag with the eye and skin care products are classified separately. The applicable subheading for the eye crème, day crème, night crème, regenerating face mask, gold complex wrinkle concentrate, and eye pads will be 3304.99.5000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for Beauty or make-up preparations and preparations for the skin (other than medicaments), including sunscreen or sun tan preparations; manicure or pedicure preparations: Other: Other. The rate of duty will be free. The applicable subheading for the tote bag will be 4202.92.4500, HTSUS, which provides for travel, sport, and similar bags, with outer surface of sheeting of plastic, other. The rate of duty will be 20 percent ad valorem. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/. Perfumery, cosmetic, and toiletry products are subject to the requirements of the Federal Food, Drug, and Cosmetic Act, which is administered by the U.S. Food and Drug Administration. You may contact them at U.S. Food and Drug Administration, Office of Cosmetics and Colors, 5100 Paint Branch Parkway, College Park, MD 20740-3835, telephone number (301) 436-1130. This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177). A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Stephanie Joseph at (646) 733-3268. Sincerely, Robert B. Swierupski Director National Commodity Specialist Division