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HQ 961417




May 11, 1998

CLA-2 RR:CR:TE 961417 RH

CATEGORY: CLASSIFICATION

TARIFF NO.: 5601.21.0010

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

RE: Classification of cosmetic pads; heading 9616; heading 5601

Dear Mr. Zisser:

This is in reply to your letter of February 20, 1998, on behalf of your client, Wabbit, Inc., requesting a ruling on the classification of "Cotton Clouds" cosmetic pads.

As you know, Customs recently published a decision on January 7, 1998, in the Customs Bulletin, Volume 32, Number 1, changing the classification of your client's product from 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, to subheading 5601.21.0000, HTSUSA, as cotton wadding. That decision was referenced as Headquarters Ruling Letter (HQ) 959678.

You now submit new facts which you believe warrant classification of the cosmetic pads under subheading 9616.20.0000, HTSUSA.

FACTS:

The merchandise under consideration is described as "Cotton Clouds" cosmetic pads. They are 100 percent cotton and measure 1 by 2 inches. They are approximately ¬ inches thick. The pads can be used to apply and remove cosmetics or toilet preparation. They are sold in cosmetic departments of stores in plastic packages containing 100 individual pads.

The current packaging for the "Cotton Clouds" states that they are "100% Cotton Pads for Cosmetic Use." 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.

You propose to change the language on the retail packaging to remove all references to baby use, makeup removal, nail enamel removal, etc. The proposed packaging will read:

"Cotton Clouds"
"For the Application of Cosmetics"

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 (EN), while not legally binding, are recognized as the official interpretation of the Harmonized System at the international level. The EN for heading 9616 state 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.

In HQ 959778, we held that "Cotton Clouds" were akin to cotton balls classifiable under subheading 5601.21.0090, HTSUSA, because they were a general-use product, not dedicated or solely used for applying cosmetics.

We reexamined the issues you raised and considered your proposed packaging. Despite the fact that the new packaging only references the use of the product for the "application of cosmetics", the merchandise itself is a potent witness for establishing that the "Cotton Clouds" are used for many purposes such as those listed on the original packaging. By being previously in the market place with more general labeling, we believe that there now exists a wide spread acceptance by purchasers that cotton clouds can be used for numerous purposes. Moreover, we found no features which would render the "Cotton Clouds" classifiable as a product used exclusively for the application of cosmetics. Accordingly, they will remain classifiable in subheading 5601.21.0010, HTSUSA.

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 general column rate at 6.1 percent ad valorem, and the textile category is 223.

Sincerely,

John Durant, Director
Commercial Rulings Division

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