CLA-2 RR:CR:TE 959678 RH
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