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HQ 956422




September 6, 1994

CLA-2 CO:R:C:T 956422 BC

CATEGORY: CLASSIFICATION

TARIFF NO.: 4823.90.8500

Theodore A. Galantowicz
District Director of Customs
U.S. Customs Service
4477 Woodson Rd. #200
St. Louis, MO 63134

RE: Application for further review of protest no. 4503-93- 100018; classification of end papers used for hair permanents; sanitary articles of paper; household articles of paper; ejusdem generis

Dear Mr. Galantowicz:

This is a decision on an application for further review of a protest timely filed by Fritz Companies, Inc., on behalf of Fred Foster, doing business as Fuji Paper USA of Chesterfield, MO. The protest objects to your decision concerning classification of the referenced end papers.

FACTS:

The protest covers three entries dated November 2, 1992, December 2, 1992, and January 13, 1993. These entries were liquidated on February 19, 1993, March 19, 1993, and May 7, 1993, respectively. This protest was timely filed on May 17, 1993.

The merchandise at issue is described in the protest as "end papers used to protect hair ends during permanent waves." They are sold under the trade name "Perfect Paper." They measure 2 1/2 inches x 4 inches. Customs classified the merchandise in subheading 4823.90.8500, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for other paper cut to size or shape.

You contend that the merchandise is more specifically provided for in subheading 4818.90.0000, HTSUSA, which provides for other household, sanitary, or hospital articles of paper.

ISSUE:

Are the hair permanent end papers at issue classifiable as other sanitary or household articles in heading 4818, HTSUSA, or as other papers cut to size or shape in heading 4823, HTSUSA?

LAW AND ANALYSIS:

Classification under the Harmonized Tariff Schedule of the United States (HTSUS) is accomplished in accordance with the General Rules of Interpretation (GRI's). The systematic detail of the Harmonized System is such that virtually all 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 goods cannot be classified solely on the basis of GRI 1, and if headings and legal notes do not otherwise require, the remaining GRI's will then be applied in sequential order.

In order for an article to be classifiable in a tariff heading by application of GRI 1, it must be named in that heading or be similar to the articles named. In other words, the article being considered for classification in a heading, if not named therein, must be ejusdem generis with the articles of that heading in order to be classified thereunder.

Heading 4818, HTSUSA, covers, in relevant part, various sanitary, household, and hospital articles made of paper. Of these named relevant articles, the toilet paper, handkerchiefs, cleansing tissues, diapers, and tampons can be considered sanitary articles. The towels, tablecloths, and napkins can be considered household articles, and the bed sheets and towels can be considered hospital articles. If the end papers are to be classified in this heading, they would be so only as sanitary or household articles. Clearly, they are not hospital articles.

Our National Import Specialist (NIS) for this commodity reported to us that end papers of this kind, used for hair permanents, serve the principal function of gripping hair to facilitate rolling it properly and maintaining its shape during the application of the permanent. In addition, they provide a means by which the creams and liquids of the permanent can be applied properly. Thus, they are more a tool or accessory of the professional or private individual hair stylist.

It was pointed out by the NIS that the end papers also serve to protect the hair from damage which could ruin the desired result. Attempting to apply a permanent without the benefit of end papers would result in the chemicals damaging the hair. First, we do not believe that this protection aspect of the end papers' role necessarily makes them a sanitary article of the kind named in the heading. Second, we believe that the end papers' role is more a functional one than a sanitary one, for use of the papers enables the stylist to apply the necessary chemicals; damage to the hair would ruin the permanent. Thus, the protection of the hair aspect of the process is secondary to the functional aspect of the process. One gets a permanent not to protect or enhance the health of one's hair, but to create a desired appearance. It is more a cosmetic venture than a hair protection or health improving venture.

Based on the foregoing, we find that the principal function of the end papers is to facilitate the application of the permanent. They are necessary accessories in the professional or private hair stylist's inventory, along with the rollers, creams, liquids, and other utensils necessary for applying a permanent. They enable the stylist to prepare and maintain the hair, as well as the ingredients of the permanent, in the proper manner necessary for producing the desired result. They do not evidence a sanitary or household utility purpose. Thus, they are not classifiable in heading 4818, HTSUSA.

Since the end papers are not more specifically described in any other heading of Chapter 48, HTSUSA, we believe they should be classified in heading 4823, HTSUSA.

HOLDING:

This protest is DENIED. The subject hair permanent end papers are classifiable in subheading 4823.90.8500, HTSUSA, as other articles of paper, cut to size or shape.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office to the PROTESTANT no later than 60 days from the date of this letter. Any reliquidation of the entries in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision, the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act, and other public access channels.

Sincerely,

John Durant, Director

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