The tariff classification of Bath Gift Set – Essence of Beauty, item No. A008CA01830 from China

N037855 September 30, 2008 CLA-2-33:OT:RR:NC:2:240 CATEGORY: Classification TARIFF NO.: 3304.99.5000; 3401.30.5000; 3924.90.5600; 4202.12.2025 Mr. Troy D. Crago Atico International USA 501 South Andrews Avenue Fort Lauderdale 33301 RE: The tariff classification of Bath Gift Set – Essence of Beauty, item No. A008CA01830 from China Dear Mr. Crago: In your letter dated September 2, 2008, you requested a tariff classification ruling. A sample of the Bath Gift Set was submitted with your inquiry for review, and will be returned. Bath Gift Set – Essence of Beauty –item No. A008CA00585 consists of a bottle of shower gel, a tube of cream bath, a tube of body lotion, and a bath sponge packaged together in a lunchbox container for retail sale. The product is sold in two scents: Nutmeg & Ginger and Pomegranate Apple. The cream bath may be used both in the bath water and applied directly to the body for cleansing the skin. The bath sponge is composed of extruded polyethylene mesh with a braided cord attached for hanging. The non-insulated lunch box container, measuring 6 ½ inches high, 3 ½ deep and 7 inches wide, is constructed of a paperboard base covered on the outermost surface with a plastic sheeting material. The lunchbox container features a carrying handle and a flip-top opening, which secures by means of a latch. Classification under the HTSUS is made in accordance with the General Rules of Interpretation ("GRIs"). GRI 1 provides that articles are to be classified by the terms of the headings and relative Section and Chapter Notes. For an article to be classified in a particular heading, the heading must describe the article, and not be excluded by any legal note. In the event that 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 may then be applied. The Explanatory Notes to the Harmonized Tariff System provide guidance in the interpretation of the Harmonized Commodity Description and Coding System at the international level. The Explanatory Notes (ENs), although not dispositive nor legally binding, provide a commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). Explanatory Note X to GRI 3 provides that the term "goods put up in sets for retail sale "mean goods that: consist of at least two different articles which are, prima facie, classifiable in different headings; consist of articles put up together to meet a particular need or carry out a specific activity; and are put up in a manner suitable for sale directly to users without repacking. Although the subject merchandise is packaged together for retail sale, the lunchbox container and toiletries 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 lunchbox container is not considered normal and usual packaging for the toiletries. The products do not constitute a set for tariff purposes. Accordingly, we would classify the toiletries and container separately. The applicable subheading for the body lotion 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 care of the skin (other than medicaments), including sunscreen or sun tan preparations; manicure or pedicure preparations: Other: Other: Other. The rate of duty will be free. The applicable subheading for the cream bath and shower gel will be 3401.30.5000, HTSUS which provides for Organic surface-active products and preparations for washing the skin, in the form of liquid or cream and put up for retail sale, whether or not containing soap: Other. The rate of duty will be free. The applicable subheading for the bath sponge will be 3924.90.5600, HTSUS, which provides for Other household articles and toilet articles, of plastics: Other: Other. The rate of duty will be 3.4 percent ad valorem. The applicable subheading for the lunch box will be 4202.12.2025, HTSUS, which provides for trunks, suitcases, vanity cases and similar containers, with outer surface of plastics, structured rigid on all sides, other. The rate of duty will be 20 percent ad valorem. Perfumery, cosmetic, and toiletry products are subject to the requirements of the Federal Food, Drug, and Cosmetic Act, which are 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. 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/. 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