OT:RR:CTF:FTM H327018 BJK
Center Director
Agriculture and Prepared Products CEE
U.S. Customs and Border Protection
6601 NW 25th Street
Miami, Florida 33122
ATTN: Anthony Filazzola, Supervisory Import Specialist
RE: Application for Further Review of Protest No. 4601-22-131210; Tariff Classification of
Acticire MB
Dear Center Director:
The following is our decision regarding the Application for Further Review (“AFR”) of
Protest No. 4601-22-131210, timely filed by Cowan, Liebowitz & Latman, P.C., on behalf of
Gattefosse Corporation (“Protestant”) on June 6, 2022, regarding U.S. Customs and Border
Protection’s (“CBP”) classification of Protestant’s shipments of its product, Acticire MB, under
heading 3824, of the Harmonized Tariff Schedule of the United States (“HTSUS”).
Protestant claims that Acticire MB is properly classified under heading 1521, HTSUS, or
alternatively, under heading 3404, HTSUS. A review of the facts and our analysis is provided
below.
FACTS:
Protestant describes Acticire MB as a texturizing and moisturizing ingredient used in cosmetic
formulations. Based on the information provided by Protestant, Acticire MB is produced by
chemically combining three types of vegetable waxes (jojoba wax, mimosa wax, and sunflower
wax) with polyglycerin-3, a clear or yellowish viscous liquid, to produce a waxy end-product.
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Protestant lists the International Nomenclature of Cosmetic Ingredients (INCI)1 as jojoba esters,
helianthus annuus (sunflower) seed wax, acacia decurrens flower (mimosa) wax, and
polyglycerin3. The jojoba esters comprise 50-75% of the final product, while the sunflower seed
wax comprises 25-50%, acacia durrens flower (mimosa) wax comprises 1-5%, and polyglycerin-
3 comprises 1-5%.
According to Protestant, in skin care formulations, Acticire MB acts as an emollient, while
in lipsticks and anhydrous formulas, it enables the inclusion of water or water-soluble actives while
maintaining a stable formulation.
Protestant imported the subject Acticire MB into the United States on August 11, 2021, as a natural
wax product under heading 1521, HTSUS. CBP issued a Request for Information (CBP Form 28)
on August 27, 2021, concerning the tariff classification of Acticire MB under heading 1521,
HTSUS. Upon review, CBP subsequently issued a Notice of Action Taken (CBP Form 29) on
December 2, 2021, indicating that Acticire MB would be reclassified under heading 3824, HTSUS,
as a ““mixture of natural ingredients.” The entry was then liquidated under the reclassified heading
on December 10, 2021. Protestant filed this protest on June 6, 2022.
ISSUE:
What is the proper tariff classification of Acticire MB under the Harmonized Tariff Schedule of
the United States (HTSUS)?
LAW AND ANALYSIS:
Initially, we note that this matter is protestable under 19 U.S.C. § 1514(a)(2) as a decision on
classification and rate and amount of duties chargeable. The protest was timely filed on June 6,
2022, within 180 days of liquidation of the entry. See 19 U.S.C. § 1514(c)(3). Review of Protest
No. 4601-22-131210 is properly accorded pursuant to 19 C.F.R. § 174.24(b) because the decision
against which the protest was filed is alleged to involve questions of law or fact which have not
been ruled upon by the Commissioner of CBP or by the Customs courts. See 19 C.F.R. § 174.24(b).
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. If 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.
The 2021 HTSUS provisions under consideration are as follows:
1521: Vegetable waxes (other than triglycerides), beeswax, other insect waxes and spermaceti,
whether or not refined or colored
* * *
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INCI are the unique identifiers for cosmetic ingredients such as waxes, oils, pigments, and other
chemicals that are assigned in accordance with rules established by the Personal Care Products Council
(PCPC), previously the Cosmetic, Toiletry, and Fragrance Association (CTFA).
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3404: Artificial waxes and prepared waxes
* * *
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 products),
not elsewhere specified or included
* * *
Note 5 to Chapter 34, HTSUS, provides in pertinent part that:
The [3404] heading does not apply to: . . . (d) Waxes mixed with, dispersed in or dissolved
in a liquid medium (headings 3045, 3809, etc.).
* * *
The Explanatory Notes (“ENs”) to the Harmonized Commodity Description and Coding
System represent the official interpretation of the tariff 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 at the
international level. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).
EN 15.21, HTSUS, states in relevant part:
The heading excludes, however: . . .
(c) Mixtures of vegetable waxes;
. .
.
(e) Vegetable waxes mixed with fats, resins, mineral or other materials (other than coloring
matter).
These mixtures are, in general, classified in Chapter 34 (usually heading 34.04 or 34.05).
* * *
EN 34.04, HTSUS, states in relevant part:
This heading covers . . .:
...
(B) Products obtained by mixing two or more different animal waxes, different vegetable
waxes or different waxes of other classes or by mixing waxes of different classes (animal,
vegetable or other) (for example, mixtures of different vegetable waxes and mixtures of
mineral wax with a vegetable wax). . . .
...
The products described in [(B)] above, when mixed with, dispersed (suspended or
emulsified) in or dissolved in a liquid medium, are however excluded from his heading.
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* * *
EN 38.24, HTSUS, provides in relevant part:
This heading covers:
...
(B) Chemical Products and Chemical or Other Preparations
...
The chemical products classified here are therefore products whose composition is not
chemically defined, whether they are obtained as by-products of the manufacture of other
substances (this applies, for example, to naphthenic acids) or prepared directly.
The chemical or other preparations are either mixtures (of which emulsions and dispersions
are special forms) or occasionally solutions. Aqueous solutions of the chemical products
of Chapter 28 or 29 remain classified within those Chapters, but solutions of these products
in solvents other than water are, apart from a few exceptions, excluded therefrom and
accordingly fall to be treated as preparations of this heading.
The preparations classified here may be either wholly or partly chemical products (this is
generally the case) or wholly of natural constituents [].
* * *
Protestant asserts that the imported Acticire MB is produced from natural vegetable wax
ingredients, which retain their identity throughout minor processing, and thus are classifiable under
heading 1521, HTSUS. Alternatively, Protestant claims that should CBP consider the presence of
multiple distinct vegetable wax ingredients to constitute “a mixture” for classification purposes,
then Acticire MB would be properly classified under heading 3404, HTSUS.
First, CBP considers Protestants claim that Acticire MB should be classified under heading 1521,
HTSUS. As noted above, Acticire MB is produced by combining jojoba wax, mimosa wax,
sunflower wax, and polyglyercin-3. While jojoba wax, mimosa wax, and sunflower wax are
vegetable waxes, the addition of polyglyercin-3, however “de minimis,” as Protestant explains,
prohibits the products classification under heading 1521, HTSUS. The ENs for heading 1521,
HTSUS, provide that products that are mixtures of vegetable waxes are precluded from
classification under that heading, as well as vegetable waxes mixed with fats, resins, mineral or
other materials (other than coloring matter). The ENs for heading 1521, HTSUS, therefore exclude
Acticire MB from classification under that heading because the product is a mixture of vegetable
waxes and is a mixture of vegetable mixes further mixed with polyglyercin-3, a glycerin polymer
that is not a “coloring matter.” In Headquarters Ruling Letter (HQ) H060975, dated September 3,
2010, CBP considered whether a product containing carnauba wax, beeswax, shellac, and
denatured ethanol could be classified under heading 1521, HTSUS. There, CBP concluded that
the additional ingredients other than vegetable wax, namely the shellac and denatured ethanol,
made the product unclassifiable under heading 1521, HTSUS. Here, the product is composed of
vegetable waxes mixed together and mixed with polyglyercin-3, which itself is not classified in
Chapter 15, HTSUS. Thus, pursuant to both the ENs for heading 1521, HTSUS, and prior treatment
by CBP, Acticire MB is precluded from classification under heading 1521, HTSUS.
Having determined that Acticire MB is not classified under heading 1521, HTSUS, CBP next
considers whether Acticire MB is classifiable under heading 3404, HTSUS, as an artificial or
prepared wax. The ENs for heading 3404, HTSUS, provides that waxes “mixed with, dispersed in
or dissolved in a liquid medium” are excluded from classification under this heading. Thus, to be
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classifiable under heading 3404, HTSUS, the polyglycerin-3 cannot be a “liquid medium” in which
the mixture of jojoba wax, mimosa wax, and sunflower wax are “mixed with, dispersed in or
dissolved in.” As discussed above, Acticire MB is produced by mixing jojoba wax, mimosa wax,
and sunflower wax with polyglycerin-3, the only liquid identified in the ingredients. The
polyglycerin-3 therefore is the liquid medium in the mixture of the vegetable waxes to produce
Acticire MB. Because Acticire MB is a mixture of vegetable waxes “mixed with, dispersed in or
dissolved in” polyglycerin-3, a liquid medium, the ENs for heading 3404, HTSUS, preclude its
classification under that heading.
Protestant disputes CBP’s reclassification of Acticire MB under heading 3824, HTSUS, arguing
that the ENs for heading 3824, HTSUS, expressly exclude artificial waxes of heading 3404,
HTSUS. As previously discussed, Acticire MB is not a product of heading 3404, HTSUS, as it is
a mixture of vegetable waxes mixed with, dispersed in or dissolved in a liquid medium, namely,
polyglycerin-3. Turning to heading 3824, HTSUS, CBP finally considers whether classification
of Acticire MB as a “chemical products and preparations of the chemical and allied industries
(including those consisting of mixtures of natural products), not elsewhere specified or included”
is proper.
EN 38.24 provides that “The chemical products classified under heading 3824, HTSUS,
are products whose composition is not chemically defined, whether they are obtained as byproducts
of the manufacture of other substances (this applies, for example, to naphthenic acids) or prepared
directly.” In HQ H237599, dated May 27, 2015, CBP considered whether bergamot extract powder
was classifiable under heading 3824, HTSUS. There, CBP determined that the product was a
mixture of polyphenols and bioflavonoids, which lack chemical definition. CBP found that the
product was outside the scope of heading 1302, HTSUS, and not described more specifically by
any other provision of the HTSUS, and thus classified it in heading 3824, HTSUS. CBP concluded
that heading 3824, HTSUS, indisputably covers chemical preparations and products consisting of
mixtures of natural products. Specifically, CBP determined that both the Court of International
Trade and CBP have held that naturally-occurring mixtures and engineered mixtures are within the
scope of heading 3824, HTSUS. See Rhodia, Inc. v. United States, 441 F. Supp. 2d 1368, 1372,
1379 (CIT 2006); see also HQ W968424, dated December 19, 2006.
Here, Acticire MB is composed of three types of vegetable waxes mixed with, dispersed in
or dissolved in polyglyercin-3. As the product is excluded from classification under headings 1521
and 3404, HTSUS, and not described more specifically by any other provision of the HTSUS, it is
consequently classified in heading 3824, HTSUS as a chemical product of the allied industries
consisting of a mixture of natural products.
HOLDING:
By application of GRI 1, Acticire MB is classified in heading 3824, HTSUS. Specifically,
the product is classified under subheading 3824.99.41, HTSUS, which provides for “Prepared
binders for foundry molds or cores; chemical products and preparations of the chemical or allied
industries (including those consisting of mixtures of natural products), not elsewhere specified or
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included: Other: Other: Fatty substances of animal or vegetable origin and mixtures thereof:
Other.” The column one, general rate of duty is 4.6% ad valorem.
You are instructed to DENY the protest.
You are instructed to notify the protestant of this decision no later than 60 days from the
date of this decision. Any reliquidation of the entry or entries in accordance with the decision must
be accomplished prior to this notification. Sixty days from the date of the decision, the Office of
Trade, Regulations and Rulings will make the decision available to CBP personnel and the public
on the Customs Rulings Online Search System (CROSS) at https://rulings.cbp.gov/ and other
methods of public distribution.
Sincerely,
Yuliya A. Gulis, Director
Commercial and Trade Facilitation Division
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