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HQ 959678




February 19, 1998

CLA-2 RR:CR:TE 959678 RH

CATEGORY: CLASSIFICATION

TARIFF NO.: 5601.21.0010

Steven B. Zisser, Esq.
2475 Paseo de las Americas
Suite D
San Diego, CA 92173

RE: Revocation of NY 836728; Request for Reconsideration of NY A81384; Cosmetic Pads; Heading 9616; Heading 5601

Dear Mr. Zisser:

This is in reply to your letter of August 26, 1996, on behalf of your client, Wabbit, Inc., requesting reconsideration of New York Ruling Letter (NY) A81384, dated April 12, 1996. In that ruling, Customs classified "Cotton Clouds" as cotton wadding under subheading 5601.21.0000 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

You submitted a sample of the merchandise for us to examine.

FACTS:

The merchandise under consideration is described as "Cotton Clouds" cosmetic pads. They are 100 percent cotton and measure 1-7/8 by 2-3/8 inches. They are approximately 1/4 inch thick. The pads can be used to apply and remove cosmetics or toilet preparations. You state that they are sold in cosmetic departments of stores in plastic packages containing 100 individual pads.

On February 28, 1989, Customs issued NY 836728, to Wabbit, Inc., classifying "Cotton Clouds" under subheading 9616.20.0000 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), as pads for the application of cosmetics or toilet preparations. Your client has entered the merchandise according to that ruling since 1989. Approximately seven years later, Charles M. Schayer, a customs broker, on behalf of Wabbit Inc., requested another ruling on the same merchandise. Unaware that a ruling already existed, Customs issued NY A81384, classifying the merchandise as cotton wadding under subheading 5601.21.0010, HTSUSA.

Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625(c)(1)), 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 revocation of NY 836728 was published on January 7, 1998, in the Customs Bulletin, Volume 32, Number 1.

ISSUE:

Are the "Cotton Clouds" classifiable under heading 9616, HTSUSA, as powder puffs and pads for the application of cosmetics or toilet preparations, or under heading 5601, HTSUSA, as wadding in the piece?

LAW AND ANALYSIS:

Classification of goods under the HTSUSA is governed by 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, taken in their appropriate order. Heading 9616 provides, in part, for "powder puffs and pads for the application of cosmetics or toilet preparations."

The Harmonized Commodity Description and Coding System Explanatory Notes, while not legally binding, are recognized as the official interpretation of the Harmonized System at the international level. The EN for heading 9616 states that the heading covers:

Powder-puffs and pads for applying any kind of cosmetic or toilet preparation (face-powder, rouge, talcum-powder, etc.). They may be made of any material (swan's or eider-down, skin, animal hair, pile fabrics, foam rubber, etc.), and they remain in this heading whether or not they have handles or trimmings of ivory, tortoise-shell, bone, plastics, base metal, precious metal or metal clad with precious metal. [Emphasis added].

In NY A81384, Customs held that the "Cotton Clouds" did not fall within heading 9616 because they were not dedicated or solely used for applying cosmetics, but were of a general purpose use (i.e., makeup and cleanser remover, astringent application, nail enamel removal and for baby use).

You contend that heading 9612 is a use provision which encompasses articles of any material used in the application of cosmetics. You state that the packaging and marketing of the "Cotton Clouds" show that they are pads which are designed and intended for the application of cosmetics and toilet preparations and not "for general use" as stated in NY A81384. The packages are sold in cosmetic departments of stores. The front and back of the packaging states "100% Cotton Pads for Cosmetic Use."

We carefully examined the sample, however, and the packaging also reads, in part:

GENTLE AND SOFT enough for baby's skin.
ECONOMICAL may be separated to desired thickness creating no waste.
THE NATURAL way to remove makeup and cleanser, apply a stringent, blend powder or blush, even remove nail enamel.
EXCELLENT for baby use.
PERFECT for any use where a soft absorbent applicator is needed. [Emphasis added].

The "Cotton Clouds" are akin to cotton balls. In NY 894923, dated March 7, 1994, we held that cotton balls about 1" in diameter were classifiable under subheading 5601.21.0090, HTSUSA. Both cotton balls and "Cotton Clouds" are a general-use product, not dedicated or solely used for applying cosmetics. Accordingly, they are classifiable in heading 5601.

HOLDING:

The "Cotton Clouds" are classifiable under subheading 5601.21.0010, HTSUSA, which provides for "Wadding of textile materials and articles thereof; textile fibers, not exceeding 5 mm in length (flock), textile dust and mill neps: Wadding; other articles of wadding: Wadding, in the piece. It is dutiable at the 1998 general column rate at 5.8 percent ad valorem, and the textile category is 223.

NY 836728 is hereby revoked. In accordance with 19 U.S.C. 1625(c)(1), this ruling will become effective 60 days after its publication in the Customs Bulletin. Publication of rulings or decisions pursuant to 19 U.S.C. 1625(c)(1) does not constitute a change of practice or position in accordance with section 177.10(c)(1), Customs Regulations (19 CFR 177.10(c)(1)).

The designated textile and apparel category may be subdivided into parts. If so, the visa and quota requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bilateral agreements which are subject to frequent renegotiations and changes, to obtain the most current information available, we suggest you check, close to the time of shipment, the Status Report On Current Import Quotas (Restraint Levels), an internal issuance of the U.S. Customs Service which is updated weekly and is available for inspection at your local Customs office.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, you should contact your local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

Sincerely,
John Durant, Director
Commercial Rulings Division

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