The tariff classification of Mix & Makeup Body Butter from China

N303861 April 24, 2019 CLA-2-33:OT:RR:NC:N3: 140 CATEGORY: Classification TARIFF NO.: 3304.99.5000; 9903.88.03 Mr. Long Vu Walgreen Co. 304 Wilmot road, MS#3163 Deerfield, IL 60015 RE: The tariff classification of Mix & Makeup Body Butter from China Dear Mr. Long Vu: In your letter dated April 5, 2019, you requested a tariff classification ruling. You provided two representative samples of the product. They will be returned to you as requested. The submitted samples are identified as Mix and Makeup Whipped Body Butter in two styles- Whipped Body Butter Bear and Whipped Body Butter Panda. You state that the kit identified by Walgreens Item Code (“WIC”) 117642 is designed for young girls ages 6 and up to mix and make their own scented lotion. Each style is packaged for retail sale and consists of the following: Body Butter Cream (1 jar) Scented Color Drops (1 bottle) Shimmer (1 bag) Plastic Oval-Shaped (1 Container) Plastic Mixing Spatula (1 piece) The user is instructed to fill the bottom of the plastic container with the body butter cream, squeeze a couple of drops of the scented colorant, add shimmer, mix it all together, apply a light amount of body butter on the skin, and twist the cap to display the decorative plastic case. In your request, you suggest classification in 9503.00.0073, Harmonized Tariff Schedule of the United States (HTSUS); however, we disagree. The kits do not meet the terms of heading 9503. The primary activity of simply mixing the components together does not provide significant play value for classification purposes as a toy. The Explanatory Notes (ENs) to the Harmonized Tariff Schedule of the United States (HTSUS) constitute the official interpretation of the tariff at the international level. EN X to General Rule of Interpretation (GRI) 3(b) provides: “for the purposes of this Rule, the term "goods put up in sets for retail sale" shall be taken to mean 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 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 users without repacking (e.g., in boxes or cases or on boards).”. EN VII to GRI 3(b), states that in "all these cases the goods are to be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable." However, the term " essential character" is not defined within the HTSUS, GRIs or ENs. EN VIII to GRI 3(b) gives guidance, stating that "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.” The Mix and Makeup Whipped Body Butter consists of multiple articles classifiable under separate headings. The components of the kits carry out a specific activity, that of mixing your own scented lotion. They are packaged for retail sale. Therefore, these kits meet the definition of the term “goods put up in sets for retail sale.” It is the opinion of this office that the essential character, within the meaning of GRI 3(b), is imparted by the body butter cream which is classified under heading 3304, HTSUS. The applicable subheading for the Mix and Makeup Whipped Body Butter will be 3304.99.5000, 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 general rate of duty will be free. Effective July 6, 2018, the Office of the United States Trade Representative (USTR) imposed an additional tariff on certain products of China classified in the subheadings enumerated in Section XXII, Chapter 99, Subchapter III U.S. Note 20(b), HTSUS. The USTR imposed additional tariffs, effective August 23, 2018, on products classified under the subheadings enumerated in Section XXII, Chapter 99, Subchapter III U.S. Note 20(d), HTSUS. Subsequently, the USTR imposed further tariffs, effective September 24, 2018, on products classified under the subheadings enumerated in Section XXII, Chapter 99, Subchapter III U.S. Note 20(f) and U.S. Note 20(g), HTSUS. For additional information, please see the relevant Federal Register notices dated June 20, 2018 (83 F.R. 28710), August 16, 2018 (83 F.R. 40823), and September 21, 2018 (83 F.R. 47974). Products of China that are provided for in subheading 9903.88.01, 9903.88.02, 9903.88.03, or 9903.88.04 and classified in one of the subheadings enumerated in U.S. Note 20(b), U.S. Note 20(d), U.S. Note 20(f) or U.S. Note 20(g) to subchapter III shall continue to be subject to antidumping, countervailing, or other duties, fees and charges that apply to such products, as well as to those imposed by the aforementioned Chapter 99 subheadings. Products of China classified under subheading 3304.99.5000, HTSUS, unless specifically excluded, are subject to the additional 10 percent ad valorem rate of duty. At the time of importation, you must report the Chapter 99 subheading, i.e., 9903.88.03 in addition to subheading, HTSUS, listed above. The tariff is subject to periodic amendment so you should exercise reasonable care in monitoring the status of goods covered by the Notice cited above and the applicable Chapter 99 subheading. 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 the World Wide Web at https://hts.usitc.gov/current. Perfumery, cosmetic, and toiletry products are subject to the requirements of the Food and Drug and Cosmetic Act, and the Fair Packaging and Labeling Act (FPLA), which are administered by the U.S. Food and Drug Administration. Questions regarding FDA requirements may be addressed to the 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, or by visiting their website at: www.fda.gov. 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 Paul Hodgkiss at [email protected]. Sincerely, Steven A. Mack Director National Commodity Specialist Division