Modification of New York Ruling Letter (NY) 801325, dated September 16, 1994; Classification of Nutriol Eyelash Conditioner

HQ 967517 July 5, 2006 CLA-2 RR:TCM:CTF 967517 TMF CATEGORY: Classification TARIFF NO.: 3304.99.5000 Mr. Mark P. Neumann Nu Skin International, Inc.One Nu Skin Plaza 75 West Center Provo, Utah 84601 RE: Modification of New York Ruling Letter (NY) 801325, dated September 16, 1994; Classification of Nutriol Eyelash Conditioner Dear Mr. Neumann: In New York Ruling Letter (NY) 801325, issued to you on September 16, 1994, Customs and Border Protection (CBP) classified, among other things, Nutriol Eyelash Conditioner in subheading 3304.20.0000, Harmonized Tariff Schedule of the United States, which 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: Eye make-up preparations.” We have reviewed NY 801325, and found it to be in error with regard to the Nutriol Eyelash Conditioner. Therefore, this ruling modifies NY 801325. Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C. §1625(c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103–182, 107 Stat. 2057, 2186 (1993), notice of the proposed modification was published on May 17, 2006 in the CUSTOMS BULLETIN in Volume 40, Number 21. No comments were received in response to this notice. FACTS: New York Ruling Letter (NY) 801325 describes the Nutriol Eyelash Conditioner as “packaged for retail sale, contains mucopolysaccharides and used to help keep eyelashes thick, healthy and protected.” ISSUE: What is the classification of the Nutriol Eyelash Conditioner? LAW AND ANALYSIS: Merchandise is classifiable under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative Section or Chapter Notes. When goods cannot be classified solely on the basis of GRI 1 and if the terms of the headings and any relative section or chapter notes do not require otherwise, the remaining GRIs 2 through 6 may be applied. Additionally, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) are the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989). Heading 3304 covers beauty or make-up preparations and preparations for the care of the skin (other than medicaments), including sunscreen or sun tan preparations. Cosmetics or makeup is defined in the Encyclopedia Britannica as “substances to enhance the beauty of the human body, apart from simple cleaning.” Subheading 3304.20.000 provides for eye makeup preparations. Goods classified in this subheading are limited to products that are used to beautify the eye area. In this case, the subject merchandise is used for improving the condition of eyelashes. Thus, it is the opinion of this office that products such as the instant eyelash conditioner are more appropriately classified with other skincare products that are used for moisturizing the skin within subheading 3304.99.5000, HTSUS, which 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: Other: Other: Other.” HOLDING: The Nutriol Eyelash Conditioner is classifiable in subheading 3304.99.5000, which 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: Other: Other: Other.” The general column one duty rate is FREE. EFFECT ON OTHER RULINGS: NY 801325, dated September 16, 1994, is hereby modified. In accordance with 19 U.S.C. §1625(c), this ruling will become effective 60 days after its publication in the CUSTOMS BULLETIN. Sincerely, Myles B. Harmon, Director Commercial Trade and Facilitation Division