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HQ W966867




September 19, 2005

CLA-2 RR:CTF:TCM 966867 AML

CATEGORY: CLASSIFICATION

TARIFF NO.: 3924.90.5500; 7013.99.5000

Mr. Edward J. Murray
Allied of Chicago, Inc.
190 Carpenter Avenue
Wheeling, IL 60090

RE: Skin abrasive articles; HQ 086282 and NY 831549 revoked

Dear Mr. Murray:

This is in regard to Headquarters Ruling Letter (“HQ”) 086282, dated May 7, 1990, and New York Ruling Letter (“NY”) 831549, dated September 20, 1988, issued to you concerning the tariff classification of pumice-like manicure/ pedicure articles composed of glass or plastic under the Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”). HQ 086282, which classified the articles under heading 3304, HTSUS, was issued in response to your request for reconsideration of NY 831549. We have reconsidered the classification decisions made in HQ 086282 and NY 831549 and determined that they are incorrect. This ruling sets forth the proper classification of the glass or plastic manicure/pedicure articles.

Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C. §1625 (c)), 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 revocations was published on August 10, 2005, in Vol. 39, No. 33 of the Customs Bulletin. No comments were received in response to the notice.

FACTS:

We described the articles in HQ 086282 as follows:

The submitted samples include items L167, L168, L169, 1000R, and 1036R. These products are used to erode or rub away dead skin cells on the hands and feet.

Items L167 (fish shaped), L168 (foot shaped), and L169 (heart shaped) consist of glass. Items 1000R and 1036R (both rectangular blocks) consist of plastic (polyeurethane resin). Although these products are called "pumice," they do not contain pumice or any other stone.
HQ 086282 continues:

The Explanatory Note to Heading 3304 makes no mention of skin care abrasives such as the items in issue. Nonetheless, correlative language does appear in the Explanatory Notes which accompany Heading 6804. The Explanatory Note to Heading 6804 indicates that that heading (which provides for hand-held sharpening or polishing stones) does not include "[p]erfumed pumice stones put up in blocks, tablets or similar prepared forms of heading 33.04."

In affirming NY 831549, we concluded that:

While the subject articles are neither perfumed nor made from pumice, they perform the same function as the perfumed pumice blocks deemed classifiable in Heading 3304. Accordingly, skin abrasive articles of glass or plastic are classifiable in subheading 3304.99.00, HTSUSA. HQ 086282 at p. 2.

ISSUE:

Whether the glass or plastic “pumice” articles for manicure/pedicure purposes are classifiable under heading 3304, HTSUS, which provides for: “[b]eauty 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”; under heading 3307, HTSUS, which provides for “pre-shave, shaving or after-shave preparations, personal deodorants, bath preparations, depilatories and other perfumery, cosmetic or toilet preparations, not elsewhere specified or included”; heading 3924, HTSUS, which provides for, among other things, other household articles and toilet articles, of plastics; heading 6804, HTSUS, which provides for, among other things, natural or agglomerated grindstones and polishing stones; or under subheading 7013, HTSUS, which provides for glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of heading 7010 or 7018)?

LAW AND ANALYSIS:

The classification of merchandise under the HTSUS is governed by the General Rules of Interpretation (“GRIs”). GRI 1, HTSUS, provides, in part, that “for legal purposes, classification shall be determined according to terms of the headings 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. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUS and are to be considered statutory provisions of law.

The HTSUS provisions under consideration are as follows:

3304 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: 3304.30.00 Manicure or pedicure preparations Other:
Other:
3304.99.50 Other.
3307 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:
3307.90.00 Other.
3924 Tableware, kitchenware, other household articles and toilet articles, of plastics: toilet articles, of plastics: 3924.90 Other:
3924.90.55 Other.
6804 Millstones, grindstones, grinding wheels and the like, without frameworks, for grinding, sharpening, polishing, trueing or cutting, hand sharpening or polishing stones, and parts thereof, of natural stone, of agglomerated natural or artificial abrasives, or of ceramics, with or without parts of other materials: Other millstones, grindstones, grinding wheels and the like: Other:
6804.30.00 Hand sharpening or polishing stones. 7013 Glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of heading 7010 or 7018):
Glassware of a kind used for table (other than drinking glasses) or kitchen purposes other than that of glass-ceramics:
Other glassware:
7013.99 Other:
Other:
Other:
7013.99.50 Valued over $0.30 but not over $3 each. An article is to be classified according to its condition as imported. See XTC Products, Inc. v. United States, 771 F.Supp. 401, 405 (1991). See also, United States v. Citroen, 223 U.S. 407 (1911). The manicure/ pedicure articles composed of glass or plastic in various shapes and colors are “pumice-like” and are intended to be used as implements to remove rough or dead skin from the hands or feet.

The glass articles are prima facie classifiable in Chapter 70, HTSUSA, which provides for articles of glass (we note that in Los Angeles Tile Jobbers, Inc. v. United States, 63 Cust. Ct. 248, C.D. 3904 (1969), the Court stated that "all articles of glass are generally defined as ‘glassware’." (63 Cust. Ct. at 250 citing Webster’s Third New International Dictionary (1968); see also Webster’s New World Dictionary, Third College Edition, at 573 (1988), defining "glassware" as "articles made of glass").

Similarly, the articles of plastic are prima facie classifiable in Chapter 39, HTSUS, which provides for articles of plastics.

When interpreting and implementing the HTSUS, the Explanatory Notes (“ENs”) of the Harmonized Commodity Description and Coding System may be utilized. The ENs, while neither legally binding nor dispositive, provide a guiding commentary on the scope of each heading, and are generally indicative of the proper interpretation of the HTSUS. U.S. Customs and Border Protection (“CBP”) believes the ENs should always be consulted. See, T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

In accordance with the edicts of GRI 1, we consider the headings which prima facie describe the article by name or use. Stones comprised of bona fide natural pumice are classified under heading 6804, specifically subheading 6804.30.0000, HTSUSA, which provides for millstones, grindstones, grinding wheels and the likehand sharpening or polishing stones, and parts thereof, of natural stone, of agglomerated natural or artificial abrasives, or of ceramics with or without parts of other materials: hand sharpening or polishing stones. See NY B88174, dated August 18, 1997, NY H85283, dated September 6, 2001, NY A85730, dated July 24, 1996, NY G86299, dated February 6, 2001 and NY I88832, dated December 4, 2002. Both the requester and CBP acknowledged when the subject rulings were issued that the articles are neither natural pumice nor agglomerated stone. Additionally, the ENs to Chapter 68 provide that “glass and glassware, including articles of glass-ceramics, fused quartz or other fused silica, are classified in Chapter 70.” Therefore, we conclude that the articles cannot be classified under heading 6804, HTSUS.

We next consider whether the articles should remain classified within Chapter 33 as manicure and pedicure preparations under heading 3304, HTSUS, or whether the articles are classifiable under heading 3307, HTSUS as described above. Note 3 to Chapter 33 provides that:

Headings 3303 to 3307 apply, inter alia, to products, whether or not mixed (other than aqueous distillates and aqueous solutions of essential oils), suitable for use as goods of these headings and put up in packings of a kind sold by retail for such use.

Note 4 to Chapter 33 provides that:

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.

The General ENs to Chapter 33 provide, in pertinent part, that:

Headings 33.03 to 33.07 include products, whether or not mixed (other than aqueous distillates and aqueous solutions of essential oils), suitable for use as goods of these headings and put up in packings of a kind sold by retail for such use (see Note 3 to this Chapter).

The products of headings 33.03 to 33.07 remain in these headings whether or not they contain subsidiary pharmaceutical or disinfectant constituents, or are held out as having subsidiary therapeutic or prophylactic value (see Note 1 (d) to Chapter 30)[for informational reference, Note 1(d) to Chapter 30 provides that Chapter 30 does not cover “[p]reparations of headings 3303 to 3307, even if they have therapeutic or prophylactic properties.”]. However, prepared room deodorisers remain classified in heading 33.07 even if they have disinfectant properties of more than a subsidiary nature.

Preparations (e.g., varnish) and unmixed products (e.g., unperfumed powdered talc, fuller’s earth, acetone, alum) which are suitable for other uses in addition to those described above are classified in these headings only when they are:

(a) In packings of a kind sold to the consumer and put up with labels, literature or other indications that they are for use as perfumery, cosmetic or toilet preparations, or as room deodorisers; or

(b) Put up in a form clearly specialised to such use (e.g., nail varnish put up in small bottles furnished with the brush required for applying the varnish)[bold emphasis in original].

Heading 3304, HTSUS, contains a provision for manicure and pedicure preparations. The ENs to heading 3304 provide the following guidance in regard to the preparations classifiable thereunder:

(B) MANICURE OR PEDICURE PREPARATIONS

This part covers nail polishes, nail varnishes, nail varnish removers, cuticle removers and other preparations for use in manicure or pedicure.

The heading does not cover:

(a) Medicinal preparations used to treat certain skin complaints, e.g., creams for the treatment of eczema (heading 30.03 or 30.04).

(b) Foot deodorants and preparations for treating nails or claws on animals (heading 33.07).

The ENs to heading 3307 provide, in pertinent part, that:

(I) Pre-shave, shaving or after-shave preparations, such as shaving creams and foams containing soaps or other organic surface-active agents (see Note 1 (c) to Chapter 34); “after-shave” lotions, alum blocks and styptic pencils.

(II) Personal (body) deodorants and antiperspirants.

(III) Bath preparations, such as perfumed bath salts and preparations for foam baths, whether or not containing soap or other organic surface-active agents (see Note 1 (c) to Chapter 34).

(IV) Preparations for perfuming or deodorising rooms, including odoriferous preparations used during religious rites. (V) Other products, such as:

(1) Depilatories [hair removal products]. (2) Scented sachets containing parts of aromatic plants used for perfuming linen cupboards. (3) Perfumed papers and papers impregnated or coated with cosmetics. (4) Contact lens or artificial eye solutions. . . (5) Wadding, felt and nonwovens impregnated, coated or covered with perfume or cosmetics. (6) Animal toilet preparations, such as dog shampoos, and plumage-improving washes for birds [bold emphasis in original].

At GRI 1, the articles composed of glass or plastics, their stated purpose being manicure/pedicure implements, are not, prima facie, classifiable under either heading 3304 or 3307, HTSUS. None of the substances contemplated in the respective headings or ENs are comprised of glass or plastics in any form, but rather are composed of creams, oils, lotions, vinegars, powders, paper, scented plant matter and the like. The articles at issue are solid and composed of glass or plastics. They are neither perfumed nor agglomerated. We conclude that the glass or plastic “pumice” cannot be construed to be a “preparation.”

In HQ 960964, dated August 17, 1998, in classifying a callus remover under heading 8214, HTSUS, we made the following conclusions concerning the classification of cosmetics:

EN 33.04(B) covering manicure or pedicure preparations states that "(t)his part covers nail polishes, nail varnishes, nail varnish removers, cuticle removers and other preparations for use in manicure or pedicure." The term "preparation" is not defined in the HTSUS or the ENs. However, Webster's New World Dictionary (3d edition) defines a "preparation" as "something prepared for a special purpose, as a medicine, cosmetic, condiment, etc." Manufactured implements and tools are notably absent from this list. Also, the ENs list no type of manufactured implement or tool as being encompassed by heading 3304, HTSUS. Rather, they describe polishes, varnishes and removers which are akin to salves, lotions or creams.

The callus remover at issue here is a manufactured good consisting of a one-piece plastic handle and head frame with two surfaces, one abrasive and one with an attached metal grater. As such, this merchandise is clearly not among the universe of "preparations" classified in heading 3304, HTSUS. HQ 960964 at p. 3.

Neither the CIT nor the CAFC have rendered a decision interpreting the term “preparations” vis-à-vis heading 3304 or 3307, HTSUS. Cf. Mita Copystar v. United States, 17 CIT 374 (CIT 1993), which concerned the definition of the term “chemical preparations”; United States v. P. John Hanrahan, Inc., 45 C.C.P.A. 120, C.A.D. 684, 1958, in which the court analyzed the definition of the term “preparation” as fit for human consumption; Nestle Refrigerated Food Co. v. United States, 18 CIT 661 (CIT 1994), in which the court, in determining the tariff classification a tomato product, recited the rules (i.e., consulted lexicographic sources, etc.) concerning the definition of the term “preparation.”

While the term “preparation” has been broadly interpreted as it appears in other chapters of the tariff schedule, we conclude that further analysis of the term for purposes of chapter 33 is required. See Avenues in Leather, Inc. v. United States, 317 F.3d 1399, CAFC 2003, in which the Court of Appeals for the Federal Circuit acknowledged, citing United States v. Stone & Downer Co., 274 U.S. 225, 71 L. Ed. 1013, 47 S. Ct. 616, Treas. Dec. 42211 (1927), that “the doctrine of issue preclusion does not hold sway over classification disputes under U.S. Customs law.”

In the absence of a contrary legislative intent, tariff terms that are not defined in an HTSUS section or chapter note, or clearly described in an EN, are construed in accordance with their common and commercial meanings, which are presumed to be the same. Nippon Kogasku (USA) Inc. v. United States, 69 CCPA 89, 673 F.2d 380 (1982). Dictionaries, scientific authorities and other reliable lexicographic sources are often consulted; and, where the term under consideration is technical in nature, appropriate technical sources of information should be consulted. C.J. Tower & Sons v. United States, 69 CCPA 128, 673 F.2d 1268 (1982).

The following electronic sources provide the following definitions of the term “preparations”:

Webster’s English Dictionary (www.math.chalmers.se) provides the following definition:

1: the action or process of making something ready for use or service or of getting ready for some occasion, test, or duty 2: a state of being prepared: READINESS 3: a preparatory act or measure 4: something that is prepared; specif : a medicinal substance fitted for use.

“Hyperdic.net” provides the following definition and examples:

Meaning: A substance prepared according to a formula. Broader: compound chemical compound
Synonyms: formulation

“Hyperdicitonary.com” provides a similar definition, i.e., a substance prepared according to a formula, as well as the following elaboration:

4. That which is prepared, made, or compounded by a certain process or for a particular purpose; a combination. Specifically:
(a) Any medicinal substance fitted for use. (b) Anything treated for preservation or examination as a specimen.
(c) Something prepared for use in cookery.

See similarly, “define.ansme.com”.

At Dorland’s Medical Dictionary online (see “mercksource.com”), the following definitions and examples are provided:
preparation 1. the act or process of making ready. 2. a medicine made ready for use. 3. an anatomic or pathologic specimen made ready and preserved for study.

At “thefreedictionary.com” the following definitions are provided:
preparation - a substance prepared according to a formula cleaner, cleanser, cleansing agent - a preparation used in cleaning something chemical compound, compound - (chemistry) a substance formed by chemical union of two or more elements or ingredients in definite proportion by weight polish - a preparation used in polishing

See also HQ 965997, dated December 19, 2002.

We find from the above-cited rulings and lexicographic sources that a preparation in Chapter 33 of the tariff connotes a mixture of two or more liquid or colloidal substances compounded together for a specific use. All of the exemplars provided by the ENs to headings 3304 and 3307 comply with this basic definition, given that all of the substances are mixtures or compounds comprised of at least two distinct component or constituent materials.

The glass or plastic articles are products of manufacture as opposed to a formulation or preparation. A single constituent material was worked to create a distinct article. Thus, while the glass or plastic articles at issue may be used for manicure or pedicure purposes, we find that the articles do not constitute a preparation and therefore cannot be classified under either heading 3304 or 3307, HTSUS. The articles at issue are akin to the callous remover classified in HQ 960964, set forth above, as they are implements that yield a cosmetic effect, rather than constituting a cosmetic preparation in and of themselves.

The glass articles in question, upon importation, are implements for removing, smoothing or abrading rough or dead skin from the hands or feet. The articles, by composition, are prima facie classifiable as glass articles under heading 7013, HTSUS.

Heading 7013, HTSUS, provides for “glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of heading 7010 or 7018).” The CIT has stated that the canon of construction ejusdem generis, which means literally, “of the same class or kind,” teaches that “where particular words of description are followed by general terms, the latter will be regarded as referring to things of a like class with those particularly described.” NisshoIwai American Corp. v. United States (“Nissho”), 10 CIT 154, 156 (1986). The CIT further stated in Nissho that “[a]s applicable to customs classification cases, ejusdem generis requires that the imported merchandise possess the essential characteristics or purposes that unite the articles enumerated eo nomine in order to be classified under the general terms.” Nissho, p. 157. Reasonable paraphrasing of the goods enumerated in the superior heading 7013 (of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes) is to describe those articles as household or toilet articles. “The general word or phrase is held to refer to things of the same kind as those specified.” Sports Graphics, Inc. v. United States, 24 Fed. 3d 1390, 1392 (Fed. Cir. 1994).

We find that the glass articles are household or toilet articles of glass, classified under heading 7013, HTSUS.

Similarly, the plastic articles for personal use are prima facie classifiable as toilet articles of plastics under heading 3924, HTSUS. The ENs to heading 3924, HTSUS, provide, in relevant part that:

This heading covers the following articles of plastics: (C) Other household articles such as ash trays, hot water bottles, matchbox holders, dustbins, buckets, watering cans, luncheon boxes, curtains, drapes, table covers and fitted furniture dust-covers (slipovers).

(D) Toilet articles (whether for domestic or non-domestic use) such as toilet sets (ewers, bowls, etc.), sanitary pails, bed pans, urinals, chamber-pots, spittoons, douche cans, eye baths; soap dishes, towel rails, tooth-brush holders, toilet paper holders, towel hooks and similar articles for bathrooms, toilets or kitchens, not intended for permanent installation in or on walls.

The plastic articles for personal use are classified under heading 3924, HTSUS.

HOLDING:

The glass manicure/pedicure articles (items L167 (fish shaped), L168 (foot shaped), and L169 (heart shaped)) are classified under subheading 7013.99.5000, HTSUSA, which provides for glassware of a kind used for table, kitchen, toilet, office, indoor decoration or similar purposes (other than that of heading 7010 or 7018): other glassware: other: other: other: valued over $0.30 but not over $3 each. The 2005 general, column 1 duty rate is 30% ad valorem.

The plastic articles (items 1000R and 1036R) are classified under subheading 3924.90.5500, HTSUSA, which provides for tableware, kitchenware, other household articles and toilet articles, of plastics: toilet articles, of plastics: other: other. The 2005 general, column 1 duty rate is 3.4% ad valorem.

Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.

EFFECT ON OTHER RULINGS:

HQ 086282 and NY 831549 are revoked. In accordance with 19 U.S.C. §1625 (c)(2), this ruling will become effective sixty (60) days after its publication in the Customs Bulletin.

Sincerely,

Myles B. Harmon, Director

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