H327018

H327018 February 14, 2025 OT:RR:CTF:FTM H327018 BJK CATEGORY: Classification TARIFF NO.: 3824.99.41 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. 1 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 * * * 1 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). 2 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. 3 * * * 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

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 * * * 1 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). 2 

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.).