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NY 808249




April 21, 1995

CLA-2-82:S:N:N3:119 808249

CATEGORY: CLASSIFICATION

TARIFF NO.: 8214.20.3000

Mr. Thomas P. Ondeck
Baker & McKenzie
815 Connecticut Avenue, N.W.
Washington, D.C. 20006-4078

RE: The tariff classification of a cuticle nipper from Italy

Dear Mr. Ondeck:

In your letter dated March 20, 1995, you requested a tariff classification ruling on behalf of Revlon, New York, NY 10022.

The cuticle nipper to be imported is 4 inches long and has curved handles with a bar spring that returns the cutting blades to the open position when pressure on the handles is released. The cutting jaws are 1/2 inch long. The actual cutting edges are 1/4 inch long and are angled and convex. You state in your letter that the nippers are designed for cuticle cutting and would be too light to be used successfully for cutting nails.

Heading 8214 and its subheadings as they appear in the tariff are as follows:

8214 Other articles of cutlery (for example, hair clippers, butchers' or kitchen cleavers, chopping or mincing knives, paper knives); manicure or pedicure sets and instruments (including nail files); base metal parts thereof: 8214.10.00 Paper knives, letter openers, erasing knives, pencil sharpeners (nonmechanical) and blades and other parts thereof

8214.20 Manicure or pedicure sets and instruments (including nail files), and parts thereof:

8214.20.30 Cuticle or cornknives, cuticle pushers, nail files, nailcleaners, nail nippers and clippers, all the foregoing used for manicure or pedicure purposes, and parts thereof

Manicure and pedicure sets, and combinations thereof, in leather cases or other containers of types ordinarily sold therewith in retail sales: 8214.20.60 In leather containers

8214.20.90 Other

8214.90 Other:
Cleavers and the like not elsewhere specified or included:
8214.90.30 Cleavers with their handles

8214.90.60 Other

8214.90.90 Other (including parts)

You are of the opinion that the cuticle nippers cannot be classified under 8214.20.30, HTS, because they are not specifically identified by name as the other manicure implements are. In support of your position you cited the three following court cases.

In Lynteq, Inc. v. United States, 976 F.2d 693, 697 (Fed. Cir. 1992), the Court of Appeals ruled that Cromophyl-L could not be classified as marigold meal in subheading 3203.00.10, HTS, at a free rate of duty. Cromophyl-L is a coloring agent derived from the raw material marigold meal through "a substantial chemical transformation which significantly alters the character as well as the molecular structure of the resulting product from that of marigold meal."

Heading 3203.00 has two subheadings: 3203.00.10 and 3203.00.50. Heading 3203.00 provides for coloring matter and preparations. Subheading 3203.00.10 provides for certain coloring matter by name: Annato, archil, cochineal, cudbear, litmus, logwood and marigold meal. Subheading 3203.00.50 provides for Other. By application of Rule 6 of the General Rules of Interpretation of the Harmonized System, the Cromophyl-L can only be classified correctly under 3203.00.50.

This case can easily be distinguished from the cuticle nipper issue at hand. It is clear that Congress intended to limit 3203.00.10 to the specifically named items and classify all other substances of heading 3203.00 under the residual subheading 3203.00.50, Other.

From United States v. Bruckmann, 65 C.C.P.A. 90, 94 (1978), you cited the principle that "an eo nomine provision which does not specifically provide for parts does not include parts". The Customs tariff is saturated with the expression "and parts thereof". To advance the opinion that a provision for parts can be implied anywhere in the Tariff would seem to suggest an unwillingness or inability to read the Tariff correctly. It would appear that this court decision does not have much bearing on the issue at hand.

In Montgomery Ward & Co. v. United States, 73 Cust. Ct. 187, C.D. 4573 (1974), the court basically ruled that an 8-track tape player and two speakers could not be classified under item 685.30 of the Tariff Schedule of the United States (TSUS) because an eo nomine provision for tape recorders could not be extended to cover tape players.

In this case the Customs Service failed to raise the point and the court did not take notice of the fact that the provision under discussion was first implemented in 1963 but had been drafted in the 1950's pursuant to Title I of the Customs Simplification Act of 1954. At that time "tape players" were not on the market to any significant extent, if at all, and the term "tape player" had not yet become part of the language of commerce. The court should have considered the term "tape recorder" to include "tape players" and rendered judgment accordingly. We consider this case to be more of an aberration than a precedent.

The issue of the applicability of an eo nomine provision to an article that is not explicitly named in that provision has been dealt with by the Customs Service and the courts in a more flexible manner than is being suggested in your letter. Certain basic guidelines or principles have emerged from these cases which clearly show that an article is not automatically excluded from an eo nomine provision simply because it is not explicitly named. On the contrary, if the wording of the provision and the nature of the article in question warrant it, such article would invariably be classified under that eo nomine provision.

For example, from Polaroid Corp. v. United States (C.D. 4179) we have the principle that "an eo nomine designation, without limitation, embraces subsequently created articles which possess an essential resemblance to the ones named in the statute and covers all forms of the article, including improved models." From Charles T. Wilson Company, Inc. v. United States (C.D. 1163) we have the useful guideline that "where a general class of articles is named in a tariff act, it is equivalent to an eo nomine enumeration of each article coming within the class."

The provision for manicure implements in the Harmonized Tariff Schedule was taken almost verbatim from the Tariff Schedules of the United States. The following paragraph is taken from the Tariff Classification Study published in 1960 by the United States Tariff Commission:

Item 649.91 would cover certain manicure or pedicure implements and tweezers. These articles are presently classified in paragraph 354, except for cuticle pushers presently classified in the "basket" provisions of paragraph 397 and nail clippers specifically provided for in paragraph 357. Predominant imports are dutiable at the rate of 37 percent ad valorem which is the rate reflected in the proposed item.

From the above it can be seen that there was a definite intent to gather all manicure implements under one provision. Even tweezers, which are not manicure implements but invariably sold in manicure sets, were included. It does not stand to reason, therefore, to believe that such a bonafide manicure implement as a cuticle nipper was not intended to be part of that provision.

The following sentence is from the section entitled "Description and Uses" in the 1968 Summaries of Trade and Tariff Information, Schedule 6 - Volume 6, United States Tariff Commission Publication 260:

Nail nippers and clippers are manicure or pedicure implements with cutting edges or blades which by a pinching or shearing action are used for cutting cuticles, fingernails, or toenails.

While a professional manicurist would most likely not use a nail nipper to cut cuticles, the average person probably does in many instances. At any rate, the above sentence would seem to indicate that perhaps in drafting the tariff not much effort was made to distinguish between a nail and a cuticle nipper.

In addition to all the points made above, we note that Heading 8214 has three one-dash subheadings: 8214.10 for paper knives, letter openers, etc.; 8214.20 for manicure or pedicure sets and instruments (including nail files), and parts thereof; and 8214.90 for Other. We could not classify the cuticle nipper under 8214.90.90 without making the erroneous implication that the cuticle nipper is not a manicure instrument. See The United States v. Ataka America, Inc. (CAD 1184).

We conclude therefore that the cuticle nipper is within the class of articles embraced by the provision for manicure sets and instruments and that the term "nail nippers" also includes cuticle nippers.

The applicable subheading for the cuticle nipper will be 8214.20.3000, Harmonized Tariff Schedule of the United States (HTS), which provides for cuticle or cornknives, cuticle pushers, nail files, nailcleaners, nail nippers and clippers, all the foregoing used for manicure or pedicure purposes, and parts thereof. The rate of duty will be 7.2 percent.

This ruling is being issued under the provisions of Section 177 of the Customs Regulations (19 C.F.R. 177).

A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is imported. If the documents have been filed without a copy, this ruling should be brought to the attention of the Customs officer handling the transaction.

Sincerely,

Jean F. Maguire
Area Director

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