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HQ W966861




September 19, 2005

CLA-2 RR:CTF:TCM 966861 AML

CATEGORY: CLASSIFICATION

TARIFF NO.: 7013.99.5000

Mr. Gary Brunell
A. N. Deringer, Inc.
30 West Service Road
Champlain, N.Y. 12919-9703

RE: Glass manicure/pedicure articles; HQ 085886 and NY 834656 revoked

Dear Mr. Brunell:

This is in regard to Headquarters Ruling Letter (“HQ”) 085886, dated February 22, 1990, and New York Ruling Letter (“NY”) 834656, dated January 17, 1989, issued to you on behalf Crabtree & Evelyn, concerning the tariff classification of pumice-like manicure/pedicure “stones” comprised of foamed glass under the Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”). HQ 085886, which affirmed classification of the articles under heading 3307, HTSUS (set forth below), was issued in response to your request for reconsideration of NY 834656. We have reconsidered the classification decisions made in HQ 085886 and NY 834656 and determined that they are incorrect. This ruling sets forth the proper classification of the foamed glass 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 085886 as follows:

The subject merchandise is described as a pink, heart-shaped, pumice-like “stone.” Based on a U.S. Customs Service laboratory report, we have determined that the subject merchandise consists of foamed glass. Moreover, the importer has stated in his submissions that the sample article is not agglomerated. The sample is packaged for sale in a plastic wrapper which is slightly scented to give the product a perfume-like odor. The pumice-like stone is designed to buff off rough or stained skin on the hands or feet.

We further observed in HQ 085886 that:

In New York Ruling Letter 834656, dated January 17, 1989, the pumice-like stone was classified under subheading 3307.90.0000, HTSUSA, which provides for 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.

We concluded that, although the articles were composed entirely of foamed glass, they were ejusdem generis with the cosmetic or toilet preparations of heading 3307, HTSUS, i.e., the foamed glass “stones” were “toilet article[s] intended to be used in the bath for grooming purposes.” HQ 085886 at p. 2.

ISSUE:

Whether the foamed glass manicure/pedicure articles 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”; heading 3307, HTSUS, which provides for “[p]re-shave, shaving or after-shave preparations, personal deodorants, bath preparations, depilatories and other perfumery, cosmetic or toilet preparations, not elsewhere specified or included”; or under heading 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.
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 article at issue is a “pumice-like” stone comprised of foamed glass that is shaped like a heart. The article is intended to be used as a manicure/pedicure implement.

The foamed glass article is 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").

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. 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 were neither natural pumice nor agglomerated stone. In this regard, 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 article composed of foamed cellular glass, its stated purpose being a manicure/pedicure implement, is 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 in any form, but rather are composed of creams, oils, lotions, vinegars, powders, paper, scented plant matter and the like. The article at issue is solid and composed of glass. It is neither perfumed nor agglomerated. (We are cognizant that the article is packaged in a scented, plastic container that causes the scent to permeate the foamed glass. However, we do not consider the article itself to be scented or perfumed for tariff purposes, especially when contrasted with the exemplars in the heading and ENs.) Given these characteristics, we conclude that the foamed glass “stone” or implement 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.

The foamed glass article is a solid article of manufacture as opposed to a formulation or preparation. A single constituent material was worked to create a distinct article. Thus, while the glass article at issue may be used for manicure or pedicure purposes, we find that the glass article does not constitute a cosmetic preparation (as it is comprised of a single, solid ingredient) and therefore cannot be classified under either heading 3304 or 3307, HTSUS. The article at issue is akin to the callous remover classified in HQ 960964, set forth above, as it is an implement that yields a cosmetic effect, rather than constituting a cosmetic preparation in and of itself.

The article in question, upon importation, is an implement for removing, smoothing or abrading rough or dead skin from the hands or feet. The article, by composition, is prima facie classifiable as a glass article 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 foamed glass article is a household or toilet article of glass, classified under heading 7013, HTSUS.

HOLDING:

The foamed glass manicure/pedicure articles 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.

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

EFFECT ON OTHER RULINGS:

HQ 085866 and NY 834656 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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