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HQ 965977




December 19, 2002

CLA-2: RR:CR:GC 965977 DBS

CATEGORY: CLASSIFICATION

TARIFF NO.: 3304.10.00

Mr. David A. Eisen
Tomkins & Davidson
One Astor Plaza,1515 Broadway
New York, NY 10036-8901

RE: Bulk cosmetic preparations; NY B84855 revoked

Dear Mr. Eisen:

On June 24, 1997, this office issued to you on behalf of your client, Christian Dior Perfumes Inc., New York (NY) B84855, classifying bulk lipstick as a chemical preparation not elsewhere specified or included under subheading 3824.90.90, Harmonized Tariff Schedule of the United States (HTSUS). We have reconsidered NY B84855 and have determined the classification to be incorrect.

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 revocation of the above identified ruling was published on November 13, 2002, in the Customs Bulletin, Volume 36, Number 46. No comments were received in response to the notice.

FACTS:

In a letter dated May 1, 1997 you had requested a binding classification ruling from Customs National Commodity Specialist Division, New York, (NCSD) for bulk lipstick with a composition as follows: castor oil, isostearate, myrisryl lactate, microcrystalline wax, cetyl acetate, butyl stearate, ceresin, mineral oil, carnuaba, acetelated linolin alcohol, synthetic beeswax, canoelilla wax, octylmethoxy cinnamate, tocopherol, titanium oxide, iron oxide, FD&C yellow, D&C red and traces of other organic compounds.

ISSUE:

Whether the scope of heading 3304, HTSUS, includes make-up preparations imported in bulk.

LAW AND ANALYSIS:

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that articles are to be classified by the terms of the headings and relative Section and Chapter Notes. For an article to be classified in a particular heading, the heading must describe the article, and not be excluded therefrom by any legal note. In the event that 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 understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) may be utilized. ENs, though not dispositive or legally binding, provide commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. Customs believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The HTSUS provisions under consideration are as follows:

3304 Beauty or make-up preparations and preparations for the care of skin (other than medicaments), including sunscreen or sun tan preparations; manicure or pedicure preparations:

3824 Prepared binders for foundry molds or cores; chemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included

GRI 1 provides that articles are to be classified by the terms of the headings and relative Section and Chapter Notes. For an article to be classified in a particular heading, the heading must describe the article, and not be excluded therefrom by any legal note.

Section VI, Note 2, HTSUS, provides, in pertinent part, as follows: “[G]oods classifiable in heading 3304by reason of being put up in measured doses or for retail sale are to be classified in [this heading] and in no other heading of the tariff schedule.”

Chapter 33, Note 3, HTSUS, states that “[h]eadings 3303 to 3307 apply, inter alia, to products, whether or not mixedsuitable for use as goods of these headings and put up in packings of a kind sold by retail for such use.”

The issue before Customs is the scope of heading 3304, HTSUS. Beauty and make-up preparations imported ready for retail sale are classifiable in heading 3304, HTSUS. However, we must consider whether the legal note excludes from classification in those headings goods imported in bulk that are not put up in packings for retail sale.

Heading 3304, HTSUS, is an eo nomine provision. An eo nomine provision is one that describes a commodity by a specific name, as opposed to use. Absent limiting language or indicia of contrary legislative intent, an eo nomine provision covers all forms of the article. See National Advanced Sys. v. United States, 26 F.3d 1107, 1111 (Fed. Cir. 1994). An eo nomine provision may be limited by use, but such use limitation should not be read into an eo nomine provision unless the name itself inherently suggests a type of use. See United States v. Quon Quon Co., 46 C.C.P.A. 70, 72-73 (1959), cited by Carl Zeiss, Inc. v. United States, 195 F.3d 1375, 1379 (Fed. Cir. 1999).
he term “preparations” is not defined in the HTSUS, and the exemplars of beauty or make-up preparations and preparations for the care of the skin in the ENs do not provide clear guidance with regard to the bulk product at issue. To determine the proper meaning of tariff terms as contained in the statute, the terms are "construed in accordance with their common and popular meaning, in the absence of contrary legislative intent." E.M. Chemicals v. United States, 920 F.2d 910, 913 (Fed. Cir. 1990). "To assist it in ascertaining the common meaning of a tariff term, the court may rely upon its own understanding of the terms used, and it may consult lexicographic and scientific authorities, dictionaries, and other reliable information sources." Brookside Veneers, Ltd. v. United States, 847 F.2d 786, 789, 6 Fed. Cir. (T) 121, 125 (Fed. Cir.) cert. denied, 488 U.S. 943, (1988).

We consulted several lexicographic sources. The relevant definition of “preparation,” found in the Oxford English Dictionary, 2281 (compact ed. 1987), is: “6. A substance specially prepared, or made up for its appropriate use or application, e.g. as food or medicine, or in the arts or sciences.” Webster’s Third New International Dictionary, 1790 (unabridged 1986), states: “5. Something that is prepared: something made, equipped, or compounded for a specific purpose.” In the Random House Unabridged Dictionary (2d ed. 1993) “preparation” is, in pertinent part: “5. Something prepared, manufactured or compounded: a special preparation for sunbathers.”

Each definition specifically states or denotes that a “preparation” is made for a specific purpose. Therefore, the eo nomine provision is limited by use. As the terms of heading 3304, HTSUS, provide for beauty and make-up preparations, goods of the heading must be substances made for the specific purpose of making oneself up.

It is axiomatic that classification is based on goods in the condition in which they are imported. See, e.g., United States v. P John. Hanrahan, Inc., 45 CCPA 120, 124, C.A.D. (1958). In Aceto Chemical Co., Inc. v. United States, 59 CCPA 212, C.A.D. 1069 (1972), the appellate court held that the chemical mixture at issue in its condition as imported contained the essential elements that impart the function of shampoo, and was thus a completed shampoo for tariff purposes, even though water, perfume and coloring agents were added after importation. Similarly, though not packaged for retail sale, the product at issue contains all essential components of lipstick and is produced only for use as a lip make-up preparation. Therefore, it is a completed lip make-up preparation for tariff purposes, and thus provided for by the terms of heading 3304, HTSUS.

Accordingly, Note 3 to Chapter 33, HTSUS, cannot be read to exclude a good specifically provided for in the heading text. Moreover, neither of the relevant legal notes use exclusionary or limiting language. On the contrary, the use of inter alia, meaning “among other things,” in Note 3 signifies that the heading covers more than products “suitable for use as goods of the heading and put up in packings of a kind sold by retail for such use.” The language of Section VI, Note 2 merely requires that goods that are put up for retail sale must be classified in those headings.

The scope of the heading is buttressed by the decisions of the Nomenclature Committee of the Customs Co-Operation Council under the Brussels Tariff Nomenclature (BTN), predecessors to the Harmonized System Committee (HSC) and the Harmonized System (HS) of the World Customs Organization, respectively. The BTN may be treated as legislative history to the tariff provisions where the language of the tariff provision and a Brussels section is very similar. See S.G.B. Steel Scaffolding & Shoring Co., Inc. v. United States, 82 Cust. Ct. 197, Cust. Dec. 4802 (1979); Sturm, Customs Laws & Administration, § 52.2 at 16, 17 (3d ed. 1988), and cases cited therein.

Heading 33.06 of the BTN provided for “Perfumery, cosmetics and toilet preparations.” It is the predecessor provision for heading to 3304, HTSUS. The language is similar, as cosmetic preparations are beauty and make-up preparations, so we may consider the BTN as legislative history. Further, the classification from the following decision was retained in the conversion to the HTS. See Annex H/3 to Doc. 33.250, NC/56/May 86, IHSC/6/May 86.

The Nomenclature Committee determined that bulk lipstick matter, not packaged for retail sale but containing all of the ingredients, including coloring matter, which needed only to be molded into lipstick was classifiable in heading 33.06. See 8500/315 E, NC/6/Sept. 61. In a classification opinion published in the Compendium of Classification Opinions, the HSC determined that lipstick base containing no coloring matter or perfume was not classifiable in Chapter 33 as an unfinished cosmetic preparation by application of GRI 2(a) because of the absence of coloring matter, an essential component of lipstick. See Doc. 37.202, HSC/9/Jan. 92; see also Doc. 37.302, HSC/8/Oct. 91 for full discussion. This lipstick base was classified as a chemical mixture in subheading 3823.90, HTS (now subheading 3824.90, HTS, pursuant to Doc. 38.960, Annex L/8, HSC/14/Nov. 94).

Heading 3824, HTSUS, provides for chemical preparations not elsewhere specified or included. As the instant product is provided for in heading 3304, HTSUS, heading 3824, HTSUS, is inapplicable.

HOLDING:

Bulk lipstick is classifiable in subheading 3304.10.00, HTSUS, which provides for, “Beauty or make-up preparations and preparations for the care of skin (other than medicaments), including sunscreen or sun tan preparations; manicure or pedicure preparations: lip make-up preparations.”

EFFECT ON OTHER RULINGS:

NY B84855, dated June 24, 1997 is hereby REVOKED. In accordance with 19 U.S.C 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.

Sincerely,

Myles B. Harmon, Acting Director
Commercial Rulings Division


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