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HQ W966877




September 19, 2005

CLA-2 RR:CTF:TCM 966877 AML

CATEGORY: CLASSIFICATION

TARIFF NO.: 6804.30.0000

Ms. Kim Young
BDP International Inc.
2721 Walker Rd. NW
Grand Rapids, MI 49504

RE: Agglomerated “pumice” sponge and stone; NY A84500 modified

Dear Mr. Young:

This is in regard to New York Ruling Letter (“NY”) A84500, dated June 21, 1996, issued to you on behalf Meijer, Inc., concerning the tariff classification of, among other things, a “pumice sponge” (Style # 93189 UPC# 0-41250-05813) and agglomerated “pumice stones” (style # 61-K-01; UPC # 41250-62844) composed of polyurethane foam, calcium stearate and calcium carbonate under the Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”). We have reconsidered the classification decision made in NY A84500 and determined that it is incorrect as it pertains to the classification of the agglomerated “pumice sponge” and “pumice stone.” This ruling sets forth the proper classification of the agglomerated 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 modification 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 relevant articles in NY A84500 as follows:

The "Pumice Sponge" Style # 93189 UPC# 0-41250-05813 and the "Pumice Stone" Style #61-K-01 UPC# 0-41250-62844, are both artificial pumice products composed of polyurethane foam, calcium stearate and calcium carbonate. Both products are used for the removal of rough skin.

We concluded that, although the articles were composed entirely of agglomerated artificial stone, they were classified under heading 3304, specifically subheading 3304.99.5000, HTSUSA, which provides for 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.

ISSUE:

Whether the agglomerated artificial “pumice sponge” and “pumice stone” for manicure/pedicure purposes are classifiable under heading 3304, HTSUS, which provides for 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; or under heading 6804, HTSUS, which provides for, among other things, natural or agglomerated grindstones and polishing stones?

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.
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.

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 articles at issue are a “pumice-like” stone and “pumice-like” sponge comprised of polyurethane foam, calcium stearate and calcium carbonate. The articles are intended to be used as manicure/pedicure implements.

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. We initially consider whether the articles should remain classified within Chapter 33 as manicure and pedicure preparations under heading 3304, HTSUS. 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.

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)[we note, for informational reference, that 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 3003 or 3004).

(b) Foot deodorants and preparations for treating nails or claws on animals (heading 3307).

At GRI 1, the articles composed of agglomerated, artificial stone, their stated purpose being manicure/pedicure implements, are not prima facie classifiable under heading 3304, HTSUS. None of the substances contemplated in the superior heading or ENs are comprised of agglomerated artificial stone 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 plastic binder and stone. However, they are not perfumed (see the EN to heading 6804 which 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 3304"). Given these characteristics, we conclude that neither the “stone” nor “sponge” can 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 HTSUSA 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, HTSUSA. 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.

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 connotation 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 HTSUSA 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 (.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 formulation 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 rulings and lexicographic sources that a preparation in Chapter 33 of the tariff connotes a mixture of two or more substances compounded together for a specific use. All of the exemplars provided by the ENs to heading 3304 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 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.

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. See also the ENs to heading 6804: certain stones (e.g., pumice) are also used for toilet, manicure and pedicure purposes; the ENs provide further that perfumed pumice stone put up in blocks, tablets or similar prepared forms are classified in heading 3304, HTSUS. Both the requester and CBP acknowledged when the subject ruling was issued that the articles are not natural pumice but in fact are agglomerated plastic and calcium carbonate, a type of artificial stone. See our discussion of the term agglomerated stone vis-à-vis heading 6810, HTSUS, in HQ 956098, dated May 16, 1994:

Artificial stone is an imitation of natural stone obtained by agglomerating pieces of natural stone or crushed or powdered natural stone (limestone, marble, granite, porphyry, serpentine, etc.) with lime or cement or other binders (e.g., plastics). Articles of artificial stone include those of "terrazzo", "granito", etc...(emphasis added). EN 68.10 specifically states that artificial stone consists of natural stone (i.e., calcium carbonate) agglomerated with binders (i.e., poly-resin). We are of the opinion that the crucial factor which makes a product an article of artificial stone is the uniform blending of the natural stone material with the binding material. Pursuant to EN 68.10, the figurines at issue are articles of artificial stone. They are made from poly-resin and calcium carbonate.

The 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 agglomerated stone classified under heading 6804, HTSUS. HOLDING:

The agglomerated manicure/pedicure articles (a “pumice sponge” (Style # 93189 UPC# 0-41250-05813) and agglomerated “pumice stones” (style # 61-K-01; UPC # 41250-62844)) are classified under 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. The general, column one duty rate is free.

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:

NY A84500 is modified. 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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