HQ 951441: Reconsideration of NY 869871; DO-HY Technique Kit; Set; GRI 3(b); EN 3(b)(X); Ad Valorem

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            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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