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NY N018313




November 2, 2007

CLA-2-33:OT:RR:NC:2:240

CATEGORY: CLASSIFICATION

TARIFF NO.: 3304.10.0000; 3304.20.0000; 3924.90.5600; 6307.90.9889; 9603.30.2000; 9603.30.4000; 9603.30.6000; 9612.20.0000

Mr. Ciprian Marinescu
Schenker of Canada
35 St. Jacques Street
Montreal, Quebec
H2Y 1K9 Canada

RE: The tariff classification of B’Chic Beauty Binder from China

Dear Mr. Marinescu:

In your letter dated September 5, 2007 and received by this office on October 9, 2007, you requested a tariff classification ruling on behalf of your client Mega Brands Inc. A sample of the B’Chic Beauty Binder was submitted for review.

B’Chic Beauty Binder, item number 42599 consists of a six-ringed binder with two plastic inserts filled with cosmetics. The inserts have holes that fit into the binder. The first insert contains six pans of cream lip-gloss and a lip brush. The second insert holds six eye shadow pans, a sponge applicator, brush, and a mirror. The binder is constructed on a paperboard base. The interior is covered with textile. The exterior is covered in textile with a printed plastic sheet cover. A layer of plastic foam material is placed between the exterior layer and the paperboard stiffener. A plastic mirror is fitted on the left side of the inside cover of the binder.

You contend that the B’Chic Beauty Binder is classifiable as a set in subheading 3304.20.0000 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: Eye make-up preparations.

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:

(a) Consist of at least two different articles, which are prima facie, classifiable in different headings; (b) Consist of 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.

Although the goods are prima facie classifiable in at least two headings, and they are put up in a manner suitable for direct sale, the Beauty Planner fails the second criterion because all of the articles do not meet a particular need or carry out a specific activity. The container 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. Containers that do not satisfy both criteria are generally not classifiable as sets. The binder is not sufficiently related to the make-up preparations. The cosmetics, brushes, and mirror are used in the application of make-up, and the binder is designed for school- or office-related functions. Though the subject binder holds beauty or make-up preparations in the instant case, the normal function of the binder is to carry school supplies and articles of stationery.

The product in question does not meet the requirement as set forth in GRI 3b; therefore, B’Chic Beauty Binder cannot be classified as a set for tariff purposes. Each item will be classified separately in its appropriate subheading.

The applicable subheading for the lip-gloss will be 3304.10.0000, 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: Lip make-up preparations. The rate of duty will be free.

The applicable subheading for the eye shadow will be 3304.20.0000, 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: Eye make-up preparations. The rate of duty will be free.

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.

The applicable subheading for the plastic mirror will be 3924.90.5600, HTSUS, which provides for Tableware, kitchenware, other household articles and hygienic or toilet articles, Of plastics: Other: Other. The rate of duty will be 3.4 percent ad valorem.

The applicable subheading for the binder will be 6307.90.9889, HTSUS, which provides for Other made up textile articles, other. The rate of duty will be 7 percent ad valorem.

The applicable subheading for the brushes, if valued not over 5 cents each, will be 9603.30.2000, HTSUS, which provides for Artists’ brushes, writing brushes, and similar brushes for the application of cosmetics: Valued not over 5 cents each. The rate of duty will be 2.6 percent ad valorem.

The applicable subheading for the brushes, if valued over 5 cents but not over 10 cents each, will be 9603.30.4000, HTSUS, which provides for Artists’ brushes, writing brushes and similar brushes for the application of cosmetics: Valued over 5 cents but not over 10 cents each. The rate of duty will be free.

The applicable subheading for the brushes, if valued over 10 cents each, will be 9603.30.6000, HTSUS, which provides for Artists’ brushes, writing brushes, and similar brushes for the application of cosmetics: Valued over 10 cents each. The rate of duty will be free.

The applicable subheading for the sponge applicator will be 9616.20.0000, HTSUS, which provides for Powder puffs and pads for the application of cosmetics or toilet preparations. The rate of duty will be 4.3 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/.

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,

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