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HQ 966959





September 27, 2004

CLA-2 RR:CR:TE 966959 TMF

CATEGORY: CLASSIFICATION

TARIFF NO.: 3307.90.00

Mr. Brian Kavanaugh
Deringer Logistics Consulting Group
1 Lincoln Blvd.
Suite 225
Rouses Point, NY 12979

RE:     Modification of New York Ruling Letter (NY) I86502, dated October 3, 2002; Classification of Nail Polish Remover Pads

Dear Mr. Kavanaugh:

In your letter dated September 18, 2002, you requested, on behalf of your client Devonshire Industries, a binding tariff ruling concerning lens cleaning wipes and nail polish remover pads. Customs and Border Protection (formerly U.S. Customs Service) issued you New York Ruling Letter (NY) I86502, dated October 3, 2002, which classified the nail polish remover pads in subheading 3304.30.0000, Harmonized Tariff Schedule of the United States (HTS), which provides for manicure or pedicure preparations.

We have reviewed this decision and have determined it to be in error. Therefore, this ruling modifies NY I86502 as it pertains to the nail polish remover pads.

Pursuant to section 625(c), Tariff Act of 1930, as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub.L. 103-182, 107 Stat. 2057, 2186 (1993) notice of the proposed revocation of NY I86502 was published on August 11, 2004, in Vol. 38, No.

33 of the CUSTOMS BULLETIN. No comments were received in response to this notice.

FACTS:

The description of the merchandise is taken from NY I86502, supra, which reads as follows:

The nail polish remover pads are composed of a non-woven 100% acrylic felt material. The pads are impregnated with acetone, isopropyl alcohol, water, lanolin and a fragrance. The pads, individually packaged in foil pouches, will be sold for retail sale in various sizes.

ISSUE:

Whether the subject nail polish remover pads are classified as manicure or pedicure preparations of heading 3304, or cosmetic preparations, not elsewhere specified or included of heading 3307, within the meaning of Chapter 33.

LAW AND ANALYSIS:

Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the HTSUS is such that most goods are classified by application of GRI 1, that is, 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 may then be applied.

     In interpreting the headings and subheadings, Customs looks to the Harmonized Commodity Description and Coding System Explanatory Notes (ENs). Although not legally binding, they provide a commentary on the scope of each heading of the HTSUS. It is Customs practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUS. See T.D. 89-90, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

     The HTSUS provisions under consideration are as follows:

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

Pre-shave, shaving or after-shave preparations, personal deodorants, bath preparations, depilatories and other perfumery, cosmetic or toilet preparations, not elsewhere specified or included; prepared room deodorizers, whether or not perfumed or having disinfectant properties: Personal deodorants and antiperspirants
3307.90.00 Other

5603    Nonwovens, whether or not impregnated, coated, covered or laminated: Of man-made filaments:
5603.11.00 Weighing not more than 25 g/m²

Note 1 to Chapter 56, HTSUS, excludes from this chapter:

(a) Wadding, felt or nonwovens, impregnated, coated or covered with substances or preparations (for example, perfumes or cosmetics of chapter 33, soaps or detergents of heading 3401...) where the textile material is present merely as a carrying medium....

In this instance, we find the above Note precludes the classification of the subject pads within Chapter 56 because their sole function is to serve as a carrier medium for nail polish remover.

In NY I86502, CBP originally classified the goods in heading 3304, which specifically provides for cosmetic preparation. We refer to Explanatory Note 33.04(B), which states, ‚Äúthis part coversnail varnish removersand other preparations for use in manicure or pedicure.‚ÄĚ We note that in lieu of Chapter 56 or heading 3307, CBP has classified towelettes impregnated with cleaning solutions in Chapter 34. See Headquarters Ruling Letter (HQ) 966800, dated February 3, 2004, referencing, in pertinent part to five New York rulings that classified other towelettes impregnated with cleaning solutions used to clean the surface of the skin in Chapter 34. These rulings are: NY 897538, dated May 27, 1994 (which classified paper towelettes used to clean hands), NY J87145, dated September 2, 2003, and NY F88830, dated August 18, 2000 (both which classified baby wipes that are used to clean baby body parts), NY 810044, dated June 20, 1995 (which classified Soft Wipe Tissues containing sodium laureth sulfate, a cleanser, in heading 3401); and NY J87912, dated September 12, 2003, which classified antiseptic towelettes used to clean hands in heading 3402, HTSUS).

However, in this instance, the subject nail polish remover pads are not skin cleaning towelettes of Chapter 34 (as in the rulings previously cited), nor simply nonwovens of heading 5603, but nonwoven cosmetic pads impregnated with nail polish remover. We refer you to Note 4 for Chapter 33, HTSUS, which defines the pertinent language in heading 3307, by stating:

The expression "perfumery, cosmetic or toilet preparations" in heading 3307 applies, inter alia, to the following products: scented sachets; odoriferous preparations which operate by burning; perfumed papers and papers impregnated or coated with cosmetics; contact lens or artificial eye solutions; wadding, felt and nonwovens, impregnated, coated or covered with perfume or cosmetics; animal toilet preparations. [Emphasis added in bold.]

Further, EN 33.07(V) states, in pertinent part, that this heading covers ‚Äúwadding, felt and nonwovens impregnated, coated or covered with perfume or cosmetics.‚ÄĚ

We note that the Tariff and the Explanatory Notes do not define the term ‚Äúcosmetic‚ÄĚ and we refer to the Encylop√¶dia Britannica (Online), which defines the term as: any of several preparations (excluding soap) that are applied to the human body for beautifying, preserving, or altering the appearance or for cleansing, colouring, conditioning, or protecting the skin, hair, nails, lips, eyes, or teeth.

The two headings, 3304 and 3307, are distinguishable with regard to the instant pads’ classification. Heading 3304 provides in general for skin and makeup preparations. Heading 3307 specifically includes nonwovens that are impregnated with perfumes or cosmetics. In this instance, the subject pads are more completely described in heading 3307 and should be reclassified therein. See HQ 085809, dated November 7, 1989, classifying a nonwoven wet tissue paper impregnated with fragrance and a cationic detergent for use in removing make-up and other functions relating to cleaning the skin within heading 3307. See also NY D85336, dated December 11, 1998, classifying a Fria Disposable Moist Towelette used to refresh the hands and face with a light perfume fragrance in heading 3307.

HOLDING:

In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after its publication in the CUSTOMS BULLETIN.

NY I86502, dated October 3, 2002, is hereby modified. The nail polish remover pads are classified in subheading 3307.90.00, HTSUS, as cosmetic or toilet preparations, not elsewhere specified or included, other. The column one duty rate is 5.4 percent ad valorem.

Sincerely,

Myles B. Harmon, Director

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