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HQ 965857




December 20, 2002

CLA-2: RR:CR:GC 965857 DBS

CATEGORY: CLASSIFICATION

TARIFF NO.: 3304.10.10

Area Director, JFK International Airport Area U.S. Customs Service c/o Chief, Liquidation and Protest Branch Bldg. 77, JFK International Airport Area
Jamaica, NW 11430

RE: Protest 4701-02-100655; bulk cosmetic preparations

Dear Sir:

This is our decision on Protest 4701-02-100655 filed against your classification, under the Harmonized Tariff Schedule of the United States (HTSUS), of bulk cosmetic preparations. Twenty-four (24) entries were liquidated between February 15, 2002 and March 8, 2002, and the protest timely filed on May 15, 2002. Intercos Productions LLC has filed multiple protests that involve substantially similar goods. In accordance with section D(1)(e) of Customs Directive #099-3550-065, dated August 1, 1993, this protest has been designated the “lead” protest.

FACTS:

The products at issue in this protest are finished formulations of lipstick, lip-gloss, eye shadow, mascara, foundation, rouge and similar cosmetic formulations imported in bulk. The products will be packaged in tubes and bottles for retail sale in the U.S. The protestant also imports make up pans (eye shadow, blush, and foundation) that will be placed in compacts for retail sale.

You classified the products in heading 3824, HTSUS, as chemical preparations not elsewhere specified. Protestant claims the products are classifiable in heading 3304, HTSUS, which provides for beauty or make-up preparations.

ISSUE:

Whether the instant bulk cosmetic preparations are classifiable as beauty preparations of heading 3304, HTSUS, or as chemical preparations not elsewhere specified of heading 3824, HTSUS.

LAW AND ANALYSIS:

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 therefrom 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.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) may be utilized. ENs, though not dispositive or legally binding, provide commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. Customs believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The HTSUS provisions under consideration are as follows:

3304 Beauty or make-up preparations and preparations for the care of skin (other than medicaments), including sunscreen or sun tan preparations; manicure or pedicure preparations:

3824 Prepared binders for foundry molds or cores; chemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural procuts), not elsewhere specified or included:

3824.90 Other:
Other:
Mixtures containing 5 percent or more by weight of one or more aromatic or modified aromatic substances:

3824.90.28 Other

Other:
Other:
3824.90.91 Other

Customs published notice of a proposed revocation of a ruling letter and revocation of treatment previously accorded by Customs to the tariff classification of bulk lipstick matter on November 13 , 2002, in the Customs Bulletin, Volume 36, Number 46. Headquarters Ruling Letter (HQ) 965977, dated December 13, 2002, revokes a ruling letter which classified bulk lipstick matter in heading 3824.90.90, HTSUS, as a chemical preparation not elsewhere specified or included. In HQ 965977 Customs reconsidered this classification and determined that lip make-up preparations imported in bulk and containing all essential elements of lip make-up is classifiable in subheading 3304.10.00, HTSUS, which provides for lipstick and other lip make-up preparations.

The analysis applied in that ruling applies to all of the make-up preparations at issue here. The LAW AND ANALYSIS section of HQ 965977 is hereby incorporated by reference. The final notice of revocation and HQ 965977 will be published in a forthcoming issue of the Customs Bulletin. A copy of HQ 965977 is enclosed.

The cosmetics at issue here contain all essential elements necessary for each respective type of cosmetic. Accordingly, they are all classifiable as beauty or make-up preparations under heading 3304, HTSUS. As such, the issue of the presence or absence of aromatics for purposes of classification under heading 3824, HTSUS, which was raised by the protestant, need not be addressed.

HOLDING:

Finished cosmetic formulations in bulk form and make-up pans are classified in the appropriate subheadings under heading 3304, HTSUS, which provides for, “ Beauty or make-up preparations and preparations for the care of skin (other than medicaments), including sunscreen or sun tan preparations; manicure or pedicure preparations.”

The protest should be GRANTED.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.

Sixty days from the date of the decision the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Acting Director
Commercial Rulings Division


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