CLA-2 CO:R:C:T 956422 BC
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
Commercial Rulings Division