IA 41/92; Empty Nail Polish Bottles; DD 866845; NY 861203; Heading 7010; Chapter 33.06, Brussels Nomenclature; EN 33.06 to Brussels Nomenclature

HQ 952303 December 28, 1992 CLA-2 CO:R:C:M 952303 EJD CATEGORY: Classification TARIFF NO: 7010.90.20 Area Director of Customs Commercial Operations Division New York Seaport Six World Trade Center New York, New York 10048 RE: IA 41/92; Empty Nail Polish Bottles; DD 866845; NY 861203; Heading 7010; Chapter 33.06, Brussels Nomenclature; EN 33.06 to Brussels Nomenclature Dear Area Director: This is in reference to your memorandum of June 12, 1992 (CLA-2:S:C:TOB:213/96), forwarding a request for Internal Advice (IA 41/92) filed on behalf of Arthur Matney Company, Inc., concerning the tariff classification of empty nail polish bottles under the Harmonized Tariff Schedule of the United States (HTSUS). A sample was submitted for our examination. FACTS: The subject of IA 41/92 is a small round glass bottle which is imported empty to be filled with nail polish. You believe that this merchandise should be classified under subheading 7010.90.20, HTSUS, the provision for glass bottles of a kind used for the conveyance or packing of perfume or other toilet preparations. The importer contends that the merchandise is classifiable in subheading 7010.90.50, HTSUS, which provides for other glass containers of a kind used for the conveyance or packing of goods. Two conflicting rulings have been issued regarding empty nail polish bottles. In DD 866845, dated September 26, 1991, the Area Director, J.F.K. Airport, held this type of merchandise to be classifiable in subheading 7010.90.20, HTSUS. In NY 861203, dated March 26, 1991, this merchandise was held to be classifiable in subheading 7010.90.50, HTSUS, by the Area Director, N.Y. Seaport. The difference in classification was based on varying interpretations of the meaning of the words "toilet preparations" as used in subheading 7010.90.20, HTSUS. ISSUE: Is nail polish a toilet preparation for classification purposes? LAW AND ANALYSIS: The classification of goods under the HTSUS is governed by the General Rules of Interpretation (GRIs), taken in order. GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes. The issue is how broadly or narrowly one reads the term "toilet preparations." The terms "cosmetics" and "toilet preparations" are not defined in the HTSUS. Importer's counsel contends that toilet preparations are limited to hygienic utilitarian items such as shampoos or toothpastes. Counsel argues that nail polish is a cosmetic, not a toilet preparation. Tariff terms are construed in accordance with their common and commercial meaning. Nippon Kogasku (USA), Inc. v. United States, 69 CCPA 89, 673 F.2d 380 (1982). Common and commercial meaning may be determined by consulting dictionaries, lexicons, scientific authorities and other reliable sources. C.J. Tower & Sons v. United States, 69 CCPA 128, 673 F.2d 1268 (1982). Webster's II New Riverside University Dictionary (1988), defines: Toiletry - An article or cosmetic used in dressing or grooming, and Cosmetic - A preparation, as rouge or lipstick, designed to beautify the body by direct application. Chapter 33, HTSUS, governs the classification of perfumes, cosmetics or toilet preparations. Importer's counsel argues that toilet preparations and cosmetics are clearly separated into mutually exclusive categories in Chapter 33, HTSUS. Perfumes and toilet waters are provided for in heading 3303, HTSUS. Manicure and pedicure preparations are provided for in heading 3304, HTSUS. Toilet preparations for the hair or for oral or dental hygiene are provided for in headings 3305 and 3306, HTSUS. Importer's counsel cites NY 861203, dated March 26, 1991, in support of their position. In NY 861203, Customs ruled on several different items, one of which was an empty nail polish bottle. In that ruling, Customs held this merchandise to be classifiable under subheading 7010.90.50, HTSUS, which provides for other containers, of glass, of a kind used for the conveyance or packing of goods. Counsel cites the U.S. Tariff Commission Summaries of Trade and Tariff Information (Summaries), Schedule 4, Volume 9 (1969) in support of their belief that nail polish is not a toilet preparation. The Summaries state, in pertinent part: Although a distinction does not generally appear to be made between cosmetics and toilet preparations, and although the industry sometimes uses the terms synonymously, the trade frequently uses the terms cosmetics in referring to non- utilitarian products such as lipstick and rouge, and the term, toilet preparations, in referring to utilitarian products such as shampoos, shaving creams, and deodorants. (Emphasis added.) We fail to see how this comment supports counsel's position. In fact, it would seem to do the opposite. By using the phrase "a distinction does not generally appear to be made" and "sometimes uses the term synonymously" the Tariff Commission points out there is no clear cut distinction between the two terms. We think the Summaries further support the position that there is no reason to distinguish between like-types of bottles. Furthermore, Customs position is consistent with the Federal Food, Drug and Cosmetic Act, 1938 (21 U.S.C. 301 et seq.) ("Act"). As noted in the Summaries, the term cosmetic refers to articles intended to be rubbed, poured, sprinkled, or sprayed on, introduced into, or otherwise applied to the human body, or any part thereof, for cleansing, beautifying, promoting attractiveness, or altering the appearance. The Act makes no distinction among perfumery, toiletry and cosmetics. Finally, counsel cites the language in the Brussels Nomenclature (BN), Chapter 33.06, in support of this position. The Explanatory Notes (ENs) to the BN segregate and discuss perfumery, cosmetics and toilet preparations into three headings. A comprehensive supplemental brief expanding on this line of reasoning was submitted. However, we believe counsel's reliance on the BN is misplaced. We think the language of the BNs and their ENs have no interpretative significance here. As previously noted, like Chapter 33.06, BN, Chapter 33, HTSUS, separates perfumery, cosmetics and toilet preparations for classification purposes. However, we are concerned with the classification of glass containers which, in this instance will be filled with nail polish, not the classification of the contents of the glass containers. The HTSUS provision reads containers of a kind used for the conveyance and packing of perfume or other toilet preparations. We believe that this provision of the HTSUS contemplates that perfume and like products are all toilet preparations and we think that there should be no distinction, at least as far as the containers are concerned. Furthermore, we think counsel's interpretation is somewhat strained. It would exclude nail polish bottles from bottles for perfumes and other toilet preparations when the ENs to the BN, Chapter 33.06, state that the entire class of merchandise includes "...nail varnish put in small bottles...." BN, at p. 498. It would be unreasonable to separate nail polish bottles from other like bottles when the language of the HTSUS specifically says other toilet preparations. According to the definitions noted above, cosmetics are toilet preparations. It is clear that the intent of the drafters of heading 7010, HTSUS, was to encompass all merchandise classifiable in headings 3303 through 3306, HTSUS. That is, bottles which contain perfumes, cosmetics and toilet preparations. Nail polish is used to beautify nails which are part of the body. By definition, nail polish is a cosmetic, and by definition, a cosmetic is a toiletry. Therefore, we must conclude that nail polish is an "other" toilet preparation. It is our opinion that the language of subheading 7010.90.20, HTSUS, itself justifies a broad reading of the term "toilet preparations." Subheading 7010.90.20, HTSUS, refers to bottles for perfumes and for other toilet preparations. For these reasons, we find that the empty nail polish bottles are properly classified under subheading 7010.90.20, HTSUS, which provides for other containers, of glass, of a kind used for the conveyance or packing of perfume or other toilet preparations. The rate of duty is 3.7 percent ad valorem. HOLDING: The empty nail polish bottles are properly classified under subheading 7010.90.20, HTSUS, which provides for "[c]arboys, bottles, flasks...and other containers, of glass, of a kind used for conveyance or packing of goods...[o]ther...containers ... of a kind used for the conveyance of perfume or other toilet preparations...[p]roduced by automatic machine." You should advise the Internal Advice applicant of this decision. EFFECT ON OTHER RULINGS: NY 861203, dated March 26, 1991, which held that an empty nail polish bottle was classifiable under subheading 7010.90.50, HTSUS, is incorrect and is, therefore, modified in accordance with this ruling. Enclosed is a copy of HQ 952733 of this date which modifies NY 861203. DD 866845, dated September 26, 1991, is affirmed. Sincerely, John Durant, Director Commercial Rulings Division Enclosure