H310592

U.S. Customs and Border Protection HQ H310592 October 7, 2020 CLA-2 OT:RR:CTF:TCM H310592 WMW CATEGORY: Classification TARIFF NO: 3808.94.50 Mr. Robert B. Back Focus Beverages B.V. Industriestraat 9 ‘S Heerenberg, 7041 GD Netherlands RE: Revocation of N311037, N304365, N303248, N242763, N233860, N032988, N039813 and L89057; classification of hand sanitizer Dear Mr. Back: This letter is to inform you that U.S. Customs and Border Protection (“CBP”) has Reconsidered New York Ruling Letters ("NY") N311037 dated April 7, 2020 NY N304365, dated May 21, 2019, NY N303248 dated March 16, 2019, NY N242763 dated July 3, 2013, NY N233860 dated November 6, 2012, NY N032988 dated August, 8, 2008, N039813 dated October 21, 2008 and NY L89057 dated January 2, 2006 regarding the classification of hand sanitizer under the Harmonized Tariff Schedule of the United States (HTSUS). In those rulings, we classified hand sanitizer in heading 3824, 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.” We have reviewed N311037, N304365, N303248, N242763, N233860, N302988, N039813 and L89057 and found them to be incorrect with respect to the classification of hand sanitizer. Regarding N039813, although not explicitly listed in the Notice published in the Customs Bulletin, CBP reviewed NY N039813 and noted that it too was revoked at the time of publication of the final notice. For the reasons set forth below, we are revoking these rulings. Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. §1625(c)(1)), as amended by section 623 of Title VI, a notice proposing to revoke NY N311037, NY N304365, NY N303248, NY N242763, NY N233860, NY N032988, and NY L89057 was published on August 5, 2020, in Volume 54, Number 30, of the Customs Bulletin. No comments were received in response to this Notice. FACTS: The subject merchandise was described as follows in the relevant rulings; all are individually packaged for retail sale: N311037: The hand sanitizer will be made of Alcohol from Rum Distillated 70% v/v. It is to be used in antimicrobial applications such as hand sanitizing. It will also contain distilled water, hydrogen peroxide, and glycerin and isopropyl myristate. N304365: ethyl alcohol (CAS number 64-17-5) which is 62% of the total product. The remainder of the hand sanitizer is comprised of water, isopropyl alcohol, glycerin, fragrance, propylene glycol, and aloe barbadensis leaf juice. N303248: ethyl alcohol (CAS number 64-17-5) which is 62% of the total product. The remainder of this hand sanitizer is comprised of water, isopropyl alcohol, glycerin, fragrance, propylene glycol, acrylates, aminomethyl propanol, isopropyl myristate, tocopheryl acetate, and caprylyl glycol. (Aromatic ingredient but not an aromatic disinfectant.) N242763: ethanol and biphenyl-2-ol. It is to be used for hygienic hand disinfection. (Aromatic preservative and antifungal.) Data sheet in file shows the product is geared toward bacterial, antiviral and antifungal. It is unclear if the biphenyl-2-ol is present as a disinfectant or as a preservative and shelf extender. However, due to the low levels present it is assumed to function as a preservative in the final solution. It is unclear what other ingredients are present. Documents show 100 gram solution contains 78.2 grams ethanol and 0.1 grams biphenyl- 2-ol. Balance of ingredients are not known at this time and are assumed to be water or other inactive ingredients. We note that product literature indicates it is geared toward elimination of Norovirus. N233860: alcohol, water, and minimal amounts of carbomer, PEG-12 dimethicone, triethanolamine, tocopheryl acetate, acid blue 9, acid yellow 23, and a fragrance. N032988: 62% ethyl alcohol, 35.6% deionized water, and minimal amounts of glycerin, propylene glycol, aloe barbadensis gel, carbomer, Vitamin E, triethanolamine and a fragrance. N039813: 62% ethyl alcohol, 37% deionized water, and minimal amounts of glycerin, isopropyl myristate, propylene glycol, tocopheryl acetate (1%), aminomethyl propanol, carbomer and a fragrance. L89057: ethyl alcohol, water, glycerin, isopropyl myristate, propylene glycol, tocopheryl acetate (less than 2%), aminomethyl propanol, and carbomer. ISSUE: Whether the subject merchandise is classified in heading 3824, HTSUS, as a chemical preparation not elsewhere specified or included; or in heading 3808, HTSUS, as disinfectants and similar products. LAW AND ANALYSIS: Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification 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. The HTSUS headings at issue are as follows: 3808: Insecticides, rodenticides, fungicides, herbicides, antisprouting products and plant-growth regulators, disinfectants and similar products, put up in forms or packing for retail sale or as preparations or articles (for example, sulfur-treated bands, wicks and candles, and flypapers): 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: * * * * * * Section VI note 2 provides that: Subject to note 1 above, goods classifiable in heading 3004, 3005, 3006, 3212, 3303, 3304, 3305, 3306, 3307, 3506, 3707 or 3808 by reason of being put up in measured doses or for retail sale are to be classified in those headings and in no other heading of the tariff schedule. * * * * * * The Harmonized Commodity Description and Coding System (HS) Explanatory Notes (“ENs”) constitute the official interpretation of the HS. While not legally binding or dispositive, the ENs provide a commentary on the scope of each heading of the HS at the international level, and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989). EN 38.08 provides, in pertinent part, as follows: (IV) Disinfectants Disinfectants are agents which destroy or irreversibly inactivate undesirable bacteria, viruses or other micro-organisms, generally on inanimate objects. Disinfectants are used, for example, in hospitals for cleaning walls, etc., or sterilizing instruments. They are also used in agriculture for disinfecting seeds and in the manufacture of animal feeds to control undesirable micro-organisms. The group includes sanitisers, bacteriostats and sterilisers. * * * * * * Heading 3824 specifically notes that it only describes articles that are not elsewhere specified or included. Therefore, if the above described articles are classified in heading 3808, HTSUS, they cannot be classified in heading 3824, HTSUS. Heading 3808 specifically provides for the instant products as a disinfectant. Alcohol in sufficient concentration destroys or irreversibly inactivates undesirable bacteria, viruses or other micro-organisms. All of the hand sanitizers contain significant amounts of alcohol, usually ethyl alcohol. Additionally, in accordance with Section VI note 2, disinfectants put up for retail sale are to only be classified in heading 3808 and in no other heading of the tariff schedule. The ENs do not persuade us otherwise. While the EN notes disinfectants are used “generally for” disinfecting hard surfaces such as table tops or operating tables, this guidance does not exclude disinfectants formulated for use on the hands. This EN also includes “sanitisers.” Pursuant to the above analysis, the subject hand sanitizer is classifiable in heading 3808, HTSUS, as a d

Classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification 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. The HTSUS headings at issue are as follows:3808: Insecticides, rodenticides, fungicides, herbicides, antisprouting products and plant-growth regulators, disinfectants and similar products, put up in forms or packing for retail sale or as preparations or articles (for example, sulfur-treated bands, wicks and candles, and flypapers): 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:* * * * * * Section VI note 2 provides that:Subject to note 1 above, goods classifiable in heading 3004, 3005, 3006, 3212, 3303, 3304, 3305, 3306, 3307, 3506, 3707 or 3808 by reason of being put up in measured doses or for retail sale are to be classified in those headings and in no other heading of the tariff schedule.* * * * * *The Harmonized Commodity Description and Coding System (HS) Explanatory Notes (“ENs”) constitute the official interpretation of the HS. While not legally binding ordispositive, the ENs provide a commentary on the scope of each heading of the HS at the international level, and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127 (August 23, 1989). EN 38.08 provides, in pertinent part, as follows:(IV) DisinfectantsDisinfectants are agents which destroy or irreversibly inactivate undesirable bacteria, viruses or other micro-organisms, generally on inanimate objects.Disinfectants are used, for e