HQ 0951441 - Reconsideration of NY 869871; DO-HY Technique Kit; Set; GRI 3(b); EN 3(b)(X); Ad Valorem - United States International Trade Commision Rulings

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HQ 951441
April 3, 1992

CLA-2 CO:R:C:M 951441 DWS

CATEGORY: CLASSIFICATION

TARIFF NO.: Not Applicable

Ms. Madeleine L'Italien
General Manager
Diffusion T.D.H. Inc.
503 Rue Duluth Est
Montreal, Quebec
Canada H2L 1A8

RE: Reconsideration of NY 869871; DO-HY Technique Kit; Set; GRI 3(b); EN 3(b)(X); Ad Valorem

Dear Ms. L'Italien:

This is in response to your letter of February 12, 1992, requesting the reconsideration of NY 869871, dated January 16, 1992, concerning the classification of the "DO-HY Technique Kit" under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

The "DO-HY Technique Kit" is marketed as a skin care system. The kit is comprised of a skin exfoliation brush, a dermo- cleanser soap, a face anti-aging concentrate, a body moisturizing balm, a shower water filter, a water control mechanism, a video tape, a booklet, and an action plan. These articles are packaged in a woven textile bag.

It is claimed that all of the above noted articles are used to regenerate the skin and activate its metabolism. According to the provided literature, one is to take a shower, using a shower head connected to the provided water filter. Then, the brush is used to exfoliate the skin. Finally, after the brushing, the various skin care products are applied to the skin. The videotape and booklet are provided to ensure that the skin care process is followed correctly.

ISSUE:

Whether the "DO-HY Technique Kit" is a set for classification purposes under the HTSUS?

LAW AND ANALYSIS:

Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification is determined according to the terms of the headings and any relative section or chapter notes.

GRI 3 must be considered in the classification of merchandise put up in sets for retail sale. GRI 3(b) provides that:

[m]ixtures, composite goods consisting of 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.

In understanding the language of GRI 3(b), the Harmonized Commodity Description and Coding System Explanatory Notes may be utilized. The Explanatory Notes, although not dispositive, are to be used to determine the proper interpretation of the HTSUS. Explanatory Note 3(b)(X) (p. 4), HTSUS, provides that "[f]or the purpose of this Rule, the term 'goods put up in sets for retail sale' shall be taken to mean 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 (e.g., in boxes or cases or on boards)."

The "DO-HY Technique Kit" does not meet the criteria for treatment as a set under GRI 3 analysis. The articles in the kit "consist of at least two different articles which are, prima facie, classifiable in different headings" and the kit is "put up in a manner suitable for sale directly to users without repacking."

However, the kit does not "consist of products or articles put up together to meet a particular need or carry out a specific activity." The "DO-HY Technique Kit" contains articles that do not meet a particular need or carry out a specific activity. The water filter carries out the activity of purifying shower water. The water control carries out the activity of controlling shower water temperature. These activities are different from those of direct skin care. Also, one can take a shower using the water filter and water control without using the skin care products or the exfoliating brush.

The "DO-HY Technique Kit" does not meet the criteria for treatment as a set under GRI 3 analysis. Under GRI 1, all of the articles contained within the pack must be classified separately under their respective headings in the HTSUS.

You also asked about the term ad valorem. This means the percentage of duty charged against the value of the merchandise imported into the United States. Please note the attached regarding the methods by which value is determined. Also, note the attached excerpt from the Customs Regulation regarding samples.

HOLDING:

Under GRI 3(b) and Explanatory Note 3(b)(X), HTSUS, the "DO-HY Technique Kit" does not meet the criteria for treatment as a set. The articles contained within the kit should be classified individually.

NY 869871 is affirmed in full.

Sincerely,

John Durant, Director
Commercial Rulings Division

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