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HQ 088940


July 24, 1991

CLA-2 CO:R:C:T 088940 HP

CATEGORY: CLASSIFICATION

TARIFF NO.: 5402.10.3040

Mr. Steven Knox
District Director
U.S. Customs Service
Second & Chestnut Streets
Philadelphia, PA 19106

RE: Application for Further Review of Protest No. 1101-90- 000575. Dental floss is not an oral nor dental hygiene prepara- tion. Yarn; put up for retail sale.

Dear Mr. Knox:

This is in reply to your memorandum of December 17, 1990, transmitting CF 19 and related papers pursuant to your request for Further Review of Protest No. 1101-90-000575.

FACTS:

The merchandise at issue consists of nylon dental floss, imported from Ireland. We assume, for the purposes of this ruling, that high tenacity nylon yarn with a twist of 5 or more turns per meter was used. The merchandise was entered as fol- lows:

Description of Merchandise Claimed Classification Appraised

Floss USA Unwaxed 55 yard Blister Pack. 3306.90.0000 5406.10.0090 Floss USA Litewax 55 yard Blister Pack.
OR
Floss USA Litewax 55 yard Blister Pack. 3306.10.0000 Floss USA Mint 55 yard Blister Pack

In addition to the merchandise described above, Protestant states that Oral-B also imports floss in units of 200 yards on a device specially designed to fit standard dental office floss dispensers. This floss for professional use is not sold at retail. This decision cannot rule upon this dispenser; Protest Review Decisions can only address merchandise in those entries which were originally protested.

ISSUE:

Whether dental floss is classified as filament yarn or dental preparations under the HTSUSA?

LAW AND ANALYSIS:

Heading 3306, HTSUSA, provides for preparation for oral and dental hygiene. The General Rules of Interpretation (GRIs) to the HTSUSA govern the classification of goods in the tariff schedule. GRI 1 states, in pertinent part, that "classification shall be determined according to the terms of the headings and any relative section or chapter notes ...." Note 2 to Chapter 33, HTSUSA, states:

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 dental floss is clearly "put up in packings of a kind sold by retail." Whether the floss is a "product" covered by the note, however, we must determine if the floss is, as the terms of the heading require, a "preparation for oral or dental hygiene."

Protestant has cited Webster's Third New International Dictionary of the English Language, unabridged (1986), which defines preparation as "5 : something that is prepared : something made, equipped, or compounded for a specific purpose...." Following this definition, Protestant states that:

[i]t is beyond dispute that dental floss is something prepared, made, or equipped for a specific purpose, i.e., oral or dental hygiene. Therefore, dental floss comes clearly within the scope of the dictionary definitions of preparation.

In United States v. P. John Hanrahan, Inc., Trans., Wm. Bernstein Co., Inc., 45 C.C.P.A. 120, C.A.D. 684 (1958), reversing C.D. 1900, the Court of Customs and Patent Appeals undertook the definition of preparations; specifically "edible preparations." The merchandise at issue in that case was vitalized wheat (or gum) gluten, which is prepared from wheat flour by removing the starch and drying and powdering the residue. This gluten cannot, as a practical matter, be eaten by itself but is commonly added to wheat flour to produce a high protein mixture which is used in making bread and other foods for dietary purposes. Chief Judge Johnson held for the Court that the gluten was an edible preparation, stating that:
we are convinced that in a case such as this, where the imported merchandise is a distinct and recognized article of commerce, having an individual name, and which is produced from a raw material by a definite series of steps, said merchandise is a preparation. The process by which the wheat gum gluten is made is not merely a removal of impurities, but is analogous to the separation of menthol from the peppermint plant, involved in McKesson & Robbins v. United States, 3 Cust. Ct. Appls. 515, T.D. 33167, or the separation of scammony resin from scammony root in United States v. Hillier's Son Co., 14 Cust. Ct. Appls. 216, T.D. 41706. The products resulting from these processes were held to be preparations, and the reasoning employed in the cited decisions is likewise applicable to the instant merchandise. [Emphasis added.] It is our opinion that the Chief Judge's use of the language "in a case such as this," plus his citation to other food preparation decisions, compels us to hold that the word "preparation" is not meant to be viewed apart from its accompanying language; edible food preparations, manicure preparations, shaving preparations, etc. Use of the aforementioned dictionary definitions, i.e., anything "made" is a preparation, therefore anything "made for dental hygiene" is a dental hygiene preparation, would unjustifiably expand the intended coverage of heading 3306, HTSUSA.

The Explanatory Notes (EN) to the HTSUSA constitute the official interpretation of the tariff at the international level. While not legally binding, they do represent the considered views of classification experts of the Harmonized System Committee. It has therefore been the practice of the Customs Service to follow, whenever possible, the terms of the Explanatory Notes when interpreting the HTSUSA. The EN to heading 3306 provides:

This heading covers preparations for oral and dental hygiene such as:

(I) Dentifrices of all types:

(1) Toothpastes and other preparations for the teeth, which contain agents with abrasive properties, whether or not they are used by dentists and whether they are used for cleaning or polishing the teeth or for other purposes such as anticaries prophylactic treatment;

(2) Denture cleaners, i.e., preparations for cleaning or polishing dentures, whether or not they contain agents with abrasive properties.

(II) Mouth washes and oral perfumes.

(III) Denture fixative pastes, powders and tablets.

It is clear from an examination of the above-listed exemplars that dental floss is not the type of preparation classifiable in heading 3306. All are liquid, powder, and/or chemical compounds designed to act upon certain aspects of the mouth.* Although floss also is used within the same body cavity, it is a tool, not a "dental preparation," to be used therein. Compare the above-listed exemplars with toothbrushes, gum massagers, and dental instruments; the latter collection all classified outside heading 3306, HTSUSA. Dental floss, therefore, is not classifiable in heading 3306, HTSUSA.

Footnote * On Protestant has suggested that since other "prepara- tion" headings within Chapter 33, HTSUSA, provide for preparations which are more than solutions - specifically, perfumed papers and papers impregnated, coated or covered with cosmetics, of heading 3307, HTSUSA - the inclusion of dental floss as a preparation in heading 3306 is consistent with the above references. We disagree. Throughout the Chapter, the non- chemical/non-solution material incorporated within the "preparation" is present merely as a carrying medium for the chemical/solution. Antithetically, the non-chemical/non-solution material in dental floss, the man-made filaments (as opposed to a wax or mint-flavored coating), is the attribute which distinguishes what the article is; it is indispensable to the structure and condition of the floss. Footnote * Off

Heading 5406, HTSUSA, provides for man-made filament yarn, put up for retail sale. Note 4(B) to Section XI, HTSUSA, provides several exceptions to the term "put up for retail sale," including, inter alia, "[s]ingle yarn of any textile material...." Explanatory Note (I)(B)(1) to Section XI, HTSUSA, defines "single yarns" as:

(i) ... yarns composed ... of:

(b) One filament (monofilament) of headings 54.02 to 54.05, or two or more filaments
(multifilament) of heading
54.02 or 54.03, held together, with or without twist
(continuous yarns).

As the floss at issue meets this description, it is not classifi- able as "put up for retail sale" in heading 5406, HTSUSA.

In NYRL 831968 of October 6, 1988, and NYRL 827051 of February 5, 1988, we classified dental floss under heading 5406, HTSUSA. These rulings no longer reflect the position of the Customs Service, and action will be taken to so advise the recipients of those rulings.

HOLDING:

As a result of the foregoing, the instant merchandise is classified under subheading 5402.10.3040, HTSUSA, textile category 606, as synthetic filament yarn (other than sewing thread), not put up for retail sale, including synthetic monofilament of less than 67 decitex, high tenacity yarn of nylon or other polyamides, single yarn, multifilament, with twist of 5 turns or more per meter. The applicable rate of duty is 10 percent ad valorem.

You are instructed to deny the protest, except to the extent reclassification of the merchandise is indicated above results in a partial allowance. A copy of this decision should be forwarded to the Protestant.

Sincerely,


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