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NY N018258

October 30, 2007

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


TARIFF NO.: 3304.99.5000

Ms. Sara M. Hachmann
Access Business Group
7575 Fulton Street East
Ada, Michigan 49355

RE: The tariff classification of Artistry® CityWear Trend Colour Collection Metro Chic from Canada

Dear Ms. Hachmann:

In your letter dated October 5, 2007, you requested a tariff classification ruling.

A sample of Artistry® CityWear Trend Colour Collection Metro Chic - SKU No. 104329 was submitted for review with your inquiry, and will be returned as requested. The article consists of a black plastic compact filled with three pans of lip color crèmes, three pans of eye shadows, one pan of shimmer shade for cheeks and lips, a built in mirror under the lid, and a dual ended lip and eye brush. The compact measures 1 ½ inches by 3 inches. The Artistry® CityWear Trend Colour Collection Metro Chic is packaged in a cardboard box for retail sale.

Packing containers are governed in part by GRI 5. GRI 5(b) states as follows: "(b)Subject to the provisions of Rule 5(a) above, packing materials and packing containers presented with the goods therein shall be classified with the goods if they are of a kind normally used for packing such goods. However, this provision is not binding when such packing materials or packing containers are clearly suitable for repetitive use." The general principal is that reusable containers are treated as separate articles and, if appropriate, dutiable at the rate applicable to such container. The application of GRI 5(b) is not subjective; it does not depend on how a particular importer uses a container. The focus is on the container itself and the question is whether that container is suitable for repetitive use. The plastic tubes and stoppers for the lip-gloss are of a kind normally used for lip-gloss, as are the plastic tubes containing the body glitter. None are suitable for repetitive use once the consumer has depleted the cosmetics inside. This is true for the plastic fitted tray, as well.

The plastic compact case containing the cosmetics and brush is governed by GRI 5(a), which states, in pertinent part, as follows:

Camera cases, musical instrument cases, gun cases . . . and similar containers, specially shaped or fitted to contain a specific article or set of articles, suitable for long-term use and presented with the articles for which they are intended, shall be classified with such articles when of a kind normally sold therewith. This rule does not, however, apply to containers which give the whole its essential character.

The compact case is molded to fit the pallets of eye shadows, lip color crèmes, cheek and lip shimmer, and dual ended brush contained therein. It is of a kind normally containing pallets of make-up preparations. It does not impart the essential character of the item, as it is merely to hold and display the make-up preparations. Therefore, it is to be classified with the articles of make-up it contains.

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. 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.

In accordance, in part, with GRI 3b “ goods put up in sets for retail sale, which cannot be classified by reference to GRI 3a, shall be classified as if they consisted of the material or component which gives them their essential character". Explanatory Note VIII to GRI 3b states that the factor, which determines essential character will vary between different kinds of goods. It may for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of the constituent material in relation to the goods. This office considers the Artistry® CityWear Trend Colour Collection Metro Chic a set for tariff classification purposes, with the essential character imparted by the cosmetics.

The applicable subheading for the Artistry® CityWear Trend Colour Collection Metro Chic will be 3304.99.5000, 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: Other: Other: Other. 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.

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.


Robert B. Swierupski

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