H341991

 HQ H341991 February 24, 2025 OT:RR:CTF:CPMMA H341991 DCC CATEGORY: Classification TARIFF No.: 3824.99.93 Ms. Amy Kriensky LIFESTYLES 66 Hudson Blvd. E c/o Studio, Floor 24 New York, NY 10001 RE: Affirmation of NY N340739; Tariff Classification of Intimate Gel from China Dear Ms. Kriensky: This is in response to your letter, submitted on September 26, 2024, in which you request reconsideration of New York Ruling Letter (“NY”) N340739, dated July 3, 2024, issued on behalf of LIFESTYLES to DSV Air & Sea, by U.S. Customs and Border Protection (“CBP”), concerning the tariff classification of intimate gel from China under the Harmonized Tariff Schedule of the United States (“HTSUS”). We have reviewed NY N340739, together with the information in your request for reconsideration, and have found the ruling to be correct for the reasons set forth below. The subject merchandise is described in NY N340739 as follows: The product in question is a gel with the product name of “SKYN® Excite Gel.” It is stated that it has been designed for use by women to maximize the female sexual experience. It is said to contain Water, Propylene Glycol, Hydroxethylcellulose L-arginine, Citric Acid, Menthol, and Methylparaben. In your initial request for a classification ruling, you state that the product is for external use only. You also state that the Methylparaben content is 0.18% w:w [percent weight of the substance by total weight] of the product. In NY N340739, CBP classified the gel under subheading 3824.99.9397, HTSUSA (“Annotated”), which provides in relevant part for chemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included: Other: Other: Other: Other: Other: Other: Other. In your request for reconsideration, you assert that the subject merchandise should be classified under subheading 3304.99.50, 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 [sic] preparations; manicure or pedicure preparations: Other: Other. In support of your assertion that the SKYN® Excite Gel should be classified under subheading 3304.99.50, HTSUS, you cite the following CBP ruling letters: NY N257542, dated October 17, 2014 (glacier cooling gel); NY N257546, dated October 10, 2014 (balsam muscle balm); NY F86529, dated May 5, 2000 (massage oil and body lotion); NY N234039, dated November 5, 2012 (non-toxic skin barrier foam); and NY 872647, dated April 1, 1992 (vaginal moisturizer gel in prefilled applicators). The classification of merchandise under the HTSUS is governed by 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. When 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. You assert that pursuant to GRIs 2 through 4 the subject merchandise should be classified under statistical suffix 3304.99.5000, HTSUSA. You assert that GRI 3 provides that when an article, by application of GRI 2(b) or for any other reason, is “classifiable under two or more headings,” “the heading which provides the most specific description shall be preferred to headings providing a more general description.” Furthermore, you assert that, according to GRI 4, “goods which cannot be classified in accordance with the above rules shall be classified under the heading appropriate to the goods to which they are most akin.” Proper classification of goods under the HTSUS requires two steps: “first ascertaining the meaning of specific terms in the tariff provisions and then determining whether the subject merchandise comes within the description of those terms.” Victoria’s Secret Direct, LLC v. United States, 769 F.3d 1102, 1106 (Fed. Cir. 2014) (quoting Millenium Lumber Distribution Ltd. v. United States, 558 F.3d 1326, 1328 (Fed. Cir. 2009)). The HTSUS is composed of headings, each of which “set[s] forth general categories of merchandise,” and “has one or more subheadings” that “provide a more particularized segregation of the goods within each category.” See, e.g., Orlando Food Corp. v. United States, 140 F.3d 1437, 1439 (Fed. Cir. 1998); Schlumberger Technology Corp. v. United States, 845 F.3d 1158, 1163 (Fed. Cir. 2017); Otter Products, LLC v. United States, 834 F.3d 1369, 1375 (Fed. Cir. 2016). Congress also prescribed, among other things, “General Rules of Interpretation” (GRI) for the HTSUS. Id. Classification analysis begins with GRI 1, which states that “for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes.” See Orlando Food, 140 F.3d at 1440. “Absent contrary legislative intent, HTSUS terms are to be construed according to their common and commercial meanings, which are presumed to be the same. A court may rely upon its own understanding of the terms used and may consult lexicographic and scientific authorities, dictionaries, and other reliable information sources.” Carl Zeiss, Inc. v. United States, 195 F.3d 1375, 1379 (Fed. Cir. 1999) (internal citation omitted). We note that none of the ruling letters you cite addresses the classification of intimate gel products. Furthermore, we do not find 3304.99.50, HTSUS, to be an appropriate alternative subheading for the subject merchandise because SKYN® Excite Gel is not a preparation for the skin. 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 (August 23, 1989). The ENs to heading 33.04, HTSUS provide that the heading applies to: Other beauty or make-up preparations and preparations for the care of the skin (other than medicaments), such as: face powders (whether or not compressed), baby powders (including talcum powder, not mixed, not perfumed, put up for retail sale), other powders and grease paints; beauty creams, cold creams, make-up creams, cleansing creams, skin foods (including those containing bees’ royal jelly) and skin tonics or body lotions; petroleum jelly, put up in packings of a kind sold by retail for the care of the skin; barrier creams to give protection against skin irritants; injectable intracutaneous gels for wrinkle elimination and lip enhancement (including those containing hyaluronic acid); anti-acne preparations (other than soaps of heading 34.01) which are designed primarily to cleanse the skin and which do not contain sufficiently high levels of active ingredients to be regarded as having a primary therapeutic or prophylactic effect against acne; toilet vinegars which are mixtures of vinegars or acetic acid and perfumed alcohol. The SKYN® Excite Gel is not intended to be used as either a beauty preparation, make-up preparation or preparation for the care of the skin; rather, it is intended to be used solely to enhance the female sexual experience. Accordingly, it is not classifiable in heading 3304, HTSUS. We also consider ENs when reviewing whether the intimate gel is classifiable in heading 3824, HTSUS, which provides for chemical products and preparations not elsewhere specified or included. EN 38.24 states, in pertinent part, as follows: (B) CHEMICAL PRODUCTS AND CHEMICAL OR OTHER PREPARATIONS . . . 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 Ch

begins with GRI 1, which states that “for legal purposes, classification shall be determined according to the terms of the headings and any relative section or chapter notes.” See Orlando Food, 140 F.3d at 1440. “Absent contrary legislative intent, HTSUS terms are to be construed according to their common and commercial meanings, which are presumed to be the same. A court may rely upon its own understanding of the terms used and may consult lexicographic and scientific authorities, dictionaries, and other reliable information sources.” Carl Zeiss, Inc. v. United States, 195 F.3d 1375, 1379 (Fed. Cir. 1999) (internal citation omitted).We note that none of the ruling letters you cite addresses the classification of intimate gel products. Furthermore, we do not find 3304.99.50, HTSUS, to be an appropriate alternative subheading for the subject merchandise because SKYN® Excite Gel is not a preparation for the skin. 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 (August 23, 1989). The ENs to heading 33.04, HTSUS provide that the heading applies to:Other beauty or make-up preparations and preparations for the care of the skin (other than medicaments), such as: face powders (whether or not compressed), baby powders (including talcum powder, not mixed, not perfumed, put up for retail sale), other powders and grease paints; beauty creams, cold creams, make-up creams, cleansing creams, skin foods (including those containing bees’ royal jelly) and skin tonics or body lotions; petroleum jelly, put up in packings of a kind sold by retail for the care of the skin; barrier creams to give protection against skin