OT:RR:CTF:CPMM H281812 APP
Ms. Stacy Bauman
American Shipping Company, Inc.
140 Sylvan Avenue
Englewood Cliffs, NJ 07632
RE: Modification of NY J86656; Tariff classification of concealer and bronzer powders
Dear Ms. Bauman:
This is to inform you that U.S. Customs and Border Protection (“CBP”) has reconsidered New York Ruling Letter (“NY”) J86656, dated July 24, 2003 (issued to Topline Products Company) regarding the classification, under the Harmonized Tariff Schedule of the United States (“HTSUS”), of concealer and bronzer powders. In NY J86656, CBP classified the concealer and bronzer powders under heading 3304, HTSUS, specifically under subheading 3304.99.50, 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.” We have determined that this ruling is in error. Therefore, for the reasons set forth below we hereby modify NY J86656 with respect to the concealer and bronzer powders.
Pursuant to section 625(c)(l), Tariff Act of 1930 (19 U.S.C. § 1625(c)(l)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057), a notice was published in the Customs Bulletin, Volume 51, No. 48, on November 29, 2017, proposing to modify NY J86656 and to revoke any treatment accorded to substantially identical transactions. No comments were received in response to this notice.
FACTS:
At issue are concealer and bronzer powders, which are applied to the skin to give it color or shine, or to cover spots, blemishes, and dark under-eye circles. The powders are poured into aluminum pans and pressure is applied to the pans compressing the powder. The aluminum pans are then placed and glued into plastic compacts, and packaged onto a folding carton or on a blister card.
ISSUE:
Whether the subject concealer and bronzer makeup preparations are classified in subheading 3304.91.00, HTSUS, as “Powders, whether or not compressed” or in subheading, 3304.99.50, HTSUS, as other makeup preparations.
LAW AND ANALYSIS:
Classification under the HTSUS is made in accordance with the General Rules of Interpretation (“GRIs”). GRI 1 provides that the classification of goods 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 2 through 6 may then be applied in order. Pursuant to GRI 6, classification at the subheading level uses the same rules, mutatis mutandis, as classification at the heading level.
The HTSUS provisions under consideration in this case are as follows:
3304 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:
3304.91.00 Powders, whether or not compressed
Other:
3304.99.50 Other
In interpreting the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) may be utilized. The 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. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
EN 33.04(A)(3) states that heading 3304 covers “Other beauty or make-up preparations and preparations for the care of the skin (other than medicaments), such as: face powders (whether or not compressed), baby powders (including talcum powder, not mixed, not perfumed, put up for retail sale), other powders and grease paints.” (emphasis added).
There is no dispute that the subject concealer and bronzer powders are classified as other beauty or makeup preparations and preparations for the care of the skin (other than medicaments) in heading 3304, HTSUS. At issue is the proper subheading. As a result, GRI 6 applies.
In NY A85580, dated August 2, 1996, CBP classified pans containing powdered blush and face powder in subheading 3304.91.00, HTSUS. In NY E83797, dated
July 2, 1999, CBP classified a metal pan containing three shades of pressed facial powder for use as a cosmetic foundation in subheading 3304.91.00, HTSUS. In NY N021535, dated January 31, 2008, CBP classified sunscreen face/body powder used as a natural sunscreen in subheading 3304.91.00, HTSUS. Just like the face powders in NY A85580, NY E83797 and NY N021535, the subject concealer and bronzer powders are preparations for the care of the skin applied to the skin to give it color or shine, or to cover spots, blemishes, and dark under-eye circles. Because the instant concealer and bronzer powders are prima facie classifiable in subheading 3304.91.00, HTSUS as powders, whether or not compressed, they are not classifiable in subheading 3304.99.50, HTSUS, the basket provision for other than powders.
HOLDING:
By application of GRIs 1 and 6, the subject concealer and bronzer powders are classified under heading 3304, HTSUS, specifically under subheading 3304.91.00, HTSUS, as “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: Powders, whether or not compressed.” The 2017 column one, duty rate is 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 at https://hts.usitc.gov/current.
EFFECT ON OTHER RULINGS:
NY J86656, dated July 24, 2003, is hereby MODIFIED with respect to the concealer and bronzer powders.
In accordance with 19 U.S.C. § 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division