CLA-2-96:OT:RR:NC:N4:433
Troy D Crago-Edwards
Import Specialist Atico International USA, Inc.
501 South Andrews Avenue Fort Lauderdale, FL 33301
RE: The tariff classification of a make-up applicator kit from China.
Dear Mr. Crago-Edwards:
In your letter dated September 13, 2010, you requested a tariff classification ruling.
Item number A011LA00081 is described as a face and eye brush set. The item consists of a flat powder brush, a blush brush, an eyeshadow applicator (brush), an eyeshadow brush, a lip brush, a combined eyebrow comb/brush, and a polyurethane faux-leather carrying case. The carry case is capable of storing and transporting every article within the kit, and secures the articles by means of a banded strap located on the right inside (opened view) of the case and a pouch located on the left inside (opened view) of the case. Based on the photos you have provided, the carrying case appears specially designed for use with all of the articles contained within the kit. You indicate that the articles are packaged together for retail sale prior to importation, and all of the brushes are valued at more than 10 cents per unit.
Classification of goods under the Harmonized Tariff Schedule of the United States (HTSUS) is governed by the General Rules of Interpretation (GRIs). GRI 1 provides that classification shall be determined 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 GRIs may then be applied in order.
The make-up applicator kit cannot be classified by reference to GRI 1 because several of the articles are classifiable in different headings of the HTSUS. As such, the applicable GRI is as follows: GRI 3 (b): Mixtures, composite goods consisting or different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.
The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute 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 and are generally indicative of the proper interpretation of these headings. See T.D. 89-80.
At GRI 3 (b) (VIII), ENs to the HTSUS, it states that the factor which determines essential character will vary between different kinds of goods. It may for example, be determined by the nature of the materials or components, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods. Further delineated under GRI 3 (b) (X), ENs, 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 users without repacking. The classification of the make-up kit hinges upon whether the carry case and its contents constitute a composite good or goods put up as sets for retail sale. A carry case is generally included with the other articles in the set unless the carry case detracts from the classification as a set. The carry case should be sufficiently related to the goods contained in it. It should be designed to carry or hold the goods of a set, and intended to be used together with the other goods to meet a particular need or carry out a specific activity; carry cases that do not satisfy both criteria are generally not classifiable as sets. See Headquarters Rulings: HQ 963593 dated October 15, 2001 and HQ 966719 dated June 9, 2004.
Photos indicate that four make-up brushes and one eyebrow combined comb and brush are fitted and sized to the exact width of the right inside of the carry case when opened, while the one wider blush brush is secured within a form fitted pouch on the left inside of the carry case when opened. Although worn out brushes are replaced, the case is only useful with identical and similar brushes of generally the same size and style. We find that the presence of the carry case does not exclude the make-up kit from consideration as a set, as the case is designed specifically to carry and hold the articles contained within the kit for the express purpose of application of cosmetics to one’s face.
In accordance with GRI 3 (b), HTSUS, the articles presented within the make-up kit meet the criteria to qualify as “goods put up in sets for retail sale.” The articles of the make-up kit are classifiable in two different headings within the HTSUS (brushes heading 9603, and combined comb and brush heading 9615); they are put together to carry out a specific activity which is the application of cosmetics to one’s face; and are put up in a manner for sale directly to users without repacking. We are of the opinion that the essential character of the face and eyebrow brush set is imparted by the six brushes that apply the make-up over one’s face, while the eyebrow comb is used primarily to separate lashes with secondary uses to remove unwanted make-up (mascara) buildup.
The applicable subheading for the face and eye brush set, will be 9603.30.6000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for “Brooms, brushes…..Artists’ brushes, writing brushes and similar brushes for the application of cosmetics: Valued over 10¢ each.” The rate of duty will be free.
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 Neil H. Levy at (646) 733-3036.
Sincerely,
Robert B. Swierupski
Director
National Commodity Specialist Division