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HQ 965443

June 19, 2002

CLA-2 RR:CR:GC: 965443 DBS


TARIFF NO.: 9616.20.00

Ms. Stacey L Weinberg
Grunfeld, Desiderio, Lebowitz,
Silverman & Klestadt, LLP
245 Park Avenue, 33rd Floor
New York, NY 10167-3397

RE: Reconsideration of NY H86174; sponge tip cosmetic applicators

Dear Ms. Weinberg:

This is in response to your letter dated February 11, 2002, requesting reconsideration of NY ruling letter H86174, issued to you on December 26, 2001, on behalf of Markwins International, which classified various sponge tip eye shadow applicators under the Harmonized Tariff Schedule of the United States (HTSUS), as powder puffs and pads for the application of cosmetics in subheading 9616.20.00, HTSUS. We have reconsidered the classification of these articles and believe NY H86174 is correct.


The merchandise at issue are various shapes and sizes of eye shadow applicators. These styles feature handles of metal and/or plastic and sponge tips at one or both ends.


Whether sponge tip eye shadow applicators are classified as powder puffs and pads for the application of cosmetics in subheading 9616.20.00, HTSUS, or as artist’ brushes, writing brushes and similar brushes for the application of cosmetics in value provisions under subheading 9603.30, HTSUS.


Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods 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 GRIs may then be applied.

In understanding the language of the HTSUS, the Harmonized Commodity Description and Coding System Explanatory Notes (ENs) may be utilized. ENs, though not dispositive or legally binding, provide commentary on the scope of each heading of the HTSUS, and are the official interpretation of the Harmonized System at the international level. Customs believes the ENs should always be consulted. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

The HTSUS provisions under consideration are as follows:

9603 Brooms, brushes (including brushes constituting parts of machines, appliances or vehicles), hand-operated mechanical floor sweepers, not motorized, mops and feather dusters; prepared knots and tufts for broom or brush making; paint pads and rollers; squeegees (other than roller sqeegees):

9603.30 Artists’ brushes, writing brushes and similar brushes for the application of cosmetics:

9603.30.20 Valued not over 5¢ each
9603.30.40 Valued over 5¢ but not over 10¢ each 9603.30.60 Valued over 10¢ each

9616 Scent sprayers and similar toilet sprayers, and mounts and head therefor; powder puffs and pads for the application of cosmetics or toilet preparations

9616.20.00 Powder puffs and pads for the application of cosmetics or toilet preparations

You claim that the sponge tip applicators are more properly classified as brushes than as pads. We turn to the EN for consideration of the tariff meaning of these terms. EN (B) for other brooms and brushes of heading 9603 state, in pertinent part:

This group comprises a variety of articles, differing considerably both in materials and shape, used for toilet purposes, for household cleaning, for applying paints, adhesive or liquid products, and for certain industrial operations (cleaning, polishing, etc.)

In general, the brooms and brushes of this group consist either of small tufts or knots of flexible or springy fibres or filaments mounted in a broom or brush stock or back, or, as in the case of paint brushes, of a bunch of hairs or fibres strongly secured to the end of a short stock or handle with or without the aid of a metal ferrule or other retaining device.

The group also includes brooms and brushes of rubber or plastics moulded in one piece.

A very wide range of raw materials is used in the manufacture of the above articles. The materials used for the tufts, etc., may be:

(A) Of animal origin: bristles of pig or wild boar; hair of horses, oxen, goats, badgers, martens, skunks, squirrels; polecats, etc.; fibres of horn or whalebone; shafts of feathers. (B) Of vegetable origin: couch-grass roots, islte (or Tampico), coco (coir) or piassava fibres, esparto grass, sorghum panicles or split bamboo. (C) Of man-made filaments (e.g. nylon or viscose rayon). (D) Of wire (steel, brass, bronze, etc.), or of various other materials, e.g., cotton or wool yarn or twine, glass fibres

The ENs specifically exclude “Powder puffs and pads for the application of cosmetics or toilet preparations (heading 96.16)” from classification in heading 9603, HTSUS.

The ENs to heading 9616 state, in pertinent part, 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.

Tariff terms are construed in accordance with their common and commercial meaning. See Nippon Kogasku (USA), Inc. v. United States, 69 CCPA 89, 673 F.2d 380 (1982). Common and commercial meaning may be determined by consulting dictionaries, lexicons, scientific authorities and other reliable sources. See C.J. Tower & Sons v. United States, 69 CCPA 128, 673 F.2d 1268 (1982).

In Dollar Trading Corp. v. United States, 51 Cust. Ct. 154 (1963), the court cited two lexicons in its discussion of the scope of a tariff provision for brushes. The definitions are as follows:

An implement made of bristles, hair, feathers, broom-corn, sea-grass, or other fibrous and flexible material, fixed to a handle or a back, and intended to be swept or rubbed over surfaces: for cleansing, furbishing, smoothing, applying colors or varnish, etc.

Funk & Wagnalls New Standard Dictionary.

1. A device composed of bristles, vegetable fibers, wire, or the like, set in a suitable back or handle of wood, ivory, metal, or the like, and used for cleaning, scrubbing, painting, etc.

Webster's New International Dictionary.

We consulted several other lexicons, including Random House Unabridged Dictionary, Second Edition (1993), Webster’s Third New International Dictionary, Unabridged (1986) and The Oxford English Dictionary (1987). The following definition of “brush,” taken from The Oxford English Dictionary, adequately represents those found in the other sources.

1. A utensil consisting of a piece of wood or other suitable material set with small tufts or bunches or bristles, hair or the like, for sweeping or scrubbing dust from a surface; generally any utensil used for brushing or sweeping.

The definitions above, as well as the ENs for heading 9603, HTSUS, describe brushes as being made of tufts of fibers, filaments, hairs or the like, bound together. In your reliance on Dollar, you contend that they are “fibrous materials fixed to a handle used to apply colors.” Unlike the steel brush at issue in Dollar, which could be readily identifiable as a brush in large part because of the block in which the strands, or tufts, of steel wire were arranged in rows, the eye shadow applicators at issue are not readily identifiable as brushes. The tips of the applicators do not consist of fibers, filaments, hairs or anything similar, bound together. Rather, the applicator tip is a spongy pad of cellular plastics.

On the other hand, the ENs to heading 9616, HTSUS, describe that powder puffs and pads are of a kind to apply cosmetics and may be made of any material. You are correct in pointing out that powder puffs are used for the application of face powder. Further, the word “pads” as it appears in the heading text does not immediately suggest pads with handles. However, the ENs inclusion that articles remain in heading 9616 whether or not they have handles strongly suggests that eye shadow applicators of the instant kind are covered by the heading.

Customs has continuously classified sponge (or foam) tip eye shadow applicators under subheading 9616.20.00, HTSUS, since the adoption of the HTSUS. See, e.g., NY 857900, dated May 17, 1990; NY 884637, dated May 3 1993; NY A80736, dated April 9, 1996; NY E80874, dated April 27, 1999; and HQ 964849, dated August 4, 2001. Accordingly, the eye shadow applicators at issue are for purposes of tariff classification powder-puffs and pads for applying any kind of cosmetic preparation, provided for in subheading 9616.20.00, HTSUS.


The foam eye shadow applicators are classifiable in subheading 9603.20.00, HTSUS, which provides for,” Scent sprayers and similar toilet sprayers, and mounts and head therefor; powder puffs and pads for the application of cosmetics or toilet preparations; powder puffs and pads for the application of cosmetics or toilet preparations.”


John Durant, Director
Commercial Rulings Division

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