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HQ H011006




October 3, 2007

CLA-2 OT:RR:CTF:TCM H011006 KSH

CATEGORY: CLASSIFICATION

TARIFF NO.: 3926.40.0000

Michael E. Roll, Esq.
Pisani & Roll
1875 Century Park East, Suite 600
Los Angeles, CA 90067

RE: Request for reconsideration of NY I89733, dated January 21, 2003; artificial fingernails

Dear Mr. Roll:

This letter is in response to your request of May 3, 2007, on behalf of your client Pacific World Corporation, for reconsideration of New York Ruling Letter (NY) I89733, dated January 21, 2003, as it pertains to the classification of artificial fingernails and artificial fingernail sets under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

FACTS:

The merchandise at issue is three styles of artificial fingernails made of plastics. Style 77239E is composed of 24 self-stick fingernails with an adhesive back surface. Style 77344E is composed of 20 artificial fingernails, a wooden stick and a small bottle of nail glue. Style 77283E is composed of 20 artificial fingernails, a buffer and a small tube of nail glue.

ISSUE:

Whether the artificial fingernails are classified in heading 3304, HTSUS, as manicure preparations, or in heading 3926, as other articles of plastics.

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by the General Rules of Interpretation (GRI). GRI 1 provides that classification shall be determined according to the terms of the headings of the tariff schedule 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 GRI may then be applied.

The Harmonized Commodity Description and Coding System Explanatory Notes (EN) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the EN provide a commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the headings. It is Customs and Border Protection’s (CBP) practice to follow, whenever possible, the terms of the ENs when interpreting the HTSUSA. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

You argue that the products are classified in heading 3304, HTSUS, which provides for, among other goods, manicure or pedicure preparations. In support, you cite to various lexicographic and court cited definitions of both preparation and manicure. In particular you cite to Nestle Refrigerated Food Co. v. United States, 18 C.I.T 661, 673-674 (1994), in which the Court of International Trade determined:

The term "preparation" has been defined as "something that is prepared: something made, equipped, or compounded for a specific purpose. . . ." Webster's Third New International Dictionary 1790 (unabridged 1993); see, e.g., Mita Copystar Corp. v. United States, 17 CIT    , Slip Op. 93-76 at 13-14 (1993) (toners and developers are properly classified as chemical preparations), aff'd, 21 F.3d 1079 (Fed. Cir. 1994).  The Oxford English Dictionary defines "preparation" as a "substance specially prepared, or made up for its appropriate use or application, e.g. as food or medicine. . . ." 12 Oxford English Dictionary 374 (2d ed. 1989). And in United States v. P. John Hanrahan, Inc., 45 CCPA 120, C.A.D. 684 (1958), the court elaborated upon what constitutes a "preparation" in its analysis of the tariff term "edible preparation." The Hanrahan court stated that "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." Id. at 122.

The dictionary definitions you have cited for “manicure” are as follows:

A cosmetic treatment of the fingernails, including shaping and polishing. American Heritage Dictionary of the English Language, 4th Ed. (2000).

A cosmetic treatment of the hands and nails. Compact Oxford English Dictionary of Current English, 3rd ed. (2005).

A cosmetic treatment of the hands and fingernails, including trimming and polishing of the nails and removing cuticles. Dictionary.com Unabridged (v 1.1). Random House Inc.

Construing these definitions together you maintain that the artificial fingernails are articles of commerce produced for the specific purpose of the cosmetic treatment of the hands and fingernails. As such, you argue that the artificial fingernails are prima facie classifiable in heading 3304, HTSUS. You also note several decisions issued by foreign tribunals classifying artificial fingernails in heading 3304, HTSUS. Additionally, you contend that under GRI 3(a), HTSUS, the artificial fingernails are classifiable as a manicure preparation in heading 3304, HTSUS, as that heading is more specific than heading 3926, HTSUS. Further as a use provision, heading 3304, HTSUS, should be preferred over heading 3926, HTSUS, which is a basket provision.

Insofar as two of the three styles are packaged with other manicure items, you argue that they are goods put up in sets for retail sale. In accordance with GRI 3(b), you maintain that the essential character of the goods is imparted by the artificial fingernails. Thus, the sets should be classified in heading 3304, HTSUS.

Heading 3304, HTSUS, 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.” The EN to heading 3304, HTSUS, provides in relevant part:

(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.

Heading 3926, HTSUS, provides for “other articles of plastics and articles of other materials of headings 3901 to 3914.” The EN to heading 3926 indicates that the heading covers articles of plastics (as defined in Note 1 to the Chapter) or other materials of headings 39.01 to 39.14, not elsewhere specified or included.

In BASF Corp. v. United States, 391 F. Supp. 2d 1246, 1255 (CIT 2005), the Court of International Trade recognized “[t]hese definitions of "preparation" in both Hanrahan and Orlando Foods are broad and unclear -- the ambiguity of which make their application difficult and of little utility for the essential role of law -- the prediction of results. Instead the court applied the canon of statutory construction noscitur a sociis (i.e., "known from its associates"), which states that a statutory term should be interpreted through an analysis of the meaning of associated words, to narrow a term’s definition. See also Jewelpack Corp. v. United States, 297 F.3d 1326, 1331 n.3 (Fed. Cir. 2002) (explaining the principle of noscitur a sociis).

Applying the cannon of noscitur a sociis to “other preparations for use in manicure,” we note that the term is preceded in the ENs by references to nail polishes, nail varnishes, nail varnish removers, cuticle removers. Manufactured implements and tools are notably absent from this list. Rather, they describe articles which are akin to salves, lotions or creams. See Headquarters Ruling Letter (HQ) 960964, dated August 17, 1998.

As noted by the CIT in BASF Corp., the definitions of preparation cited to in previous decisions are broad and unclear. Indeed, if your definition of “preparation” were accepted, any article used for the cosmetic treatment of the fingernails would be classified in heading 3304, HTSUS. Clearly such an interpretation is contrary to legislative intent. Tariff terms should be interpreted to avoid absurd or anomalous results. 2 Sturm, Customs Law & Administration § 51.4, p. 29 (3rd Ed. 1995); see, e.g., Nisso-Iwai Corp. v. United States, 10 C.I.T. 154, 641 F. Supp. 808, 812 (1986). Moreover, your proposed interpretation of the term “preparation” violates the rule that a statutory provision should not be read so as to make another superfluous. See, e.g., Duncan v. Walker, 533 U.S. 167, 174, 150 L. Ed. 2d 251, 121 S. Ct. 2120 (2001) (counseling against such statutory constructions). For instance, manicure and pedicure sets and instruments which are packaged for retail sale are eo nomine provided for in heading 8214, HTSUS. Under your broad interpretation of manicure “preparations,” heading 8214, HTSUS, would be superfluous.

Insofar as you cite to European Economic Community – Binding Tariff Information (BTI) ruling letters and a foreign tribunal decision, we note that in HQ 965130, dated March 27, 2002, CBP’s position on rulings from other countries was discussed. That ruling states, in part:

In an effort to achieve uniformity in the interpretation of the Harmonized System (HS) at the international level, Customs regards rulings from other countries that classify identical or substantially similar merchandise as instructive. However, such rulings do not constitute the official interpretation of the HS. For this and other reasons, these rulings shall not be treated as dispositive and Customs is not bound by them.

For the aforementioned reasons, the artificial fingernails are not classifiable in heading 3304, HTSUS. As such, we need not address whether heading 3304, HTSUS, more specifically provides for these articles.

Inasmuch as two of the three articles are composed of artificial fingernails, nail glue and a buffer or wooden stick, GRI 1 is inapplicable and the remaining GRI must be applied. GRI 2(b) leads us to application of GRI 3(a). GRI 3(a) directs that the headings are regarded as equally specific when each heading refers to part only of the items in a set put up for retail sale. Explanatory Note X to GRI 3(b), indicates that the term "goods put up in sets for retail sale" means goods which:

(a) consist of at least two different articles which are prima facie, classifiable in different headings;

(b) consist of products or articles put up together to meet a particular need or carry out a specific activity; and

(c) are put up in a manner suitable for sale directly to users without repacking (e.g., in boxes or cases or on boards).

The artificial fingernails are classified in heading 3926, HTSUS, which provides for “other articles of plastics and articles of other materials of headings 3901 to 3914.” The nail glue is classified in heading 3506, HTSUS, which provides for “prepared glues and other prepared adhesives, not elsewhere specified or included; products suitable for use as glues or adhesives, put up for retail sale as glues or adhesives, not exceeding a net weight of 1 kg.” The wooden stick is classified in heading 4417, HTSUS, which provides, in pertinent part for tools of wood. Depending on the composition of the buffer, it is classified in either heading 6805, HTSUS, which provides for "Natural or artificial abrasive powder or grain, on a base of textile material, of paper, of paperboard or of other materials, whether or not cut to shape or sewn or otherwise made up" or heading 3924, HTSUS, which provides for “tableware, kitchenware, other household articles and hygienic or toilet articles, of plastics.”

These articles are put up together for purposes of a manicure and they are put up in a manner directly for sale without repacking. Thus, the articles qualify as a set.

GRI 3(b) states that mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable. In general, essential character has been construed to mean the attribute, which strongly marks or serves to distinguish what an article is; that which is indispensable to the structure, core or condition of the article. EN (VIII) to GRI 3(b), provides further factors, which help determine the essential character of goods. Factors such as bulk, quantity, weight or value, or the role of a constituent material in relation to the use of the goods are to be utilized, though the importance of certain factors will vary between different kinds of goods. It is the artificial fingernails which dominate in bulk and quantity and most strongly marks what is the article. Thus, it is the artificial fingernails which provide the essential character.

HOLDING:

By application of GRI 1, style 77239E consisting of artificial fingernails is classified in heading 3926, HTSUS. It is provided for in subheading 3926.40.0000, HTSUS, which provides for “other articles of plastics and articles of other materials of headings 3901 to 3914: Statuettes and other ornamental articles.” By application of GRI 1 and GRI 3(b), styles 77344E and 77283E, consisting of artificial fingernails and either a wooden stick and nail glue or a buffer and nail glue, are classified in heading 3926, HTSUS. They are also provided for in subheading 3926.40.0000, HTSUS. The general column one rate of duty for merchandise classified in subheading 3926.40.0000, HTSUS, is 5.3% ad valorem.

EFFECT ON OTHER RULINGS:

NY I89733, dated January 21, 2003, is hereby affirmed.

Sincerely,

Myles B. Harmon, Director
Commercial and Trade Facilitation Division

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