HQ 954659: Protest No. 1001-92-106475; Combination cosmetic comb/brush;9603.30.40; GRI 3; HQ 953537

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 954659
          
                                        November 19, 1994
CLA-2 CO:R:C:M 954659 MMC

CATEGORY: Classification

TARIFF NO.: 9615.11.30

Regional Commissioner of Customs
c/o Protest and Control Section
6 World Trade Center, Rm 761
New York, New York 10048-0945

RE: Protest No. 1001-92-106475; Combination cosmetic comb/brush;
9603.30.40; GRI 3; HQ 953537

Dear Regional Commissioner:

     The following is our decision regarding the request for
further review of Protest No. 1001-92-106475, concerning your
action in classifying and assessing duty on a combination
cosmetic comb/brush under the Harmonized Tariff Schedule of the
United States (HTSUS).

FACTS:

     The subject article, referred to as item 69G, is a
combination cosmetic comb and brush intended to be used on the
face as a groomer for eyelashes and eyebrows.  

     The merchandise was entered under subheading 9603.30.40,
HTSUS, as brushes for the application of cosmetics.  However, the
entry was liquidated on October 9, 1992, under subheading
9615.11.30, HTSUS, as a comb.  The protest was timely filed
October 22, 1992.

     The subheadings under consideration are as follows:

9603.30.40     [b]rooms, 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 squeegees):
               [a]rtists' brushes, writing brushes, and similar
               brushes for the application of cosmetics: [v]alued
               over 5 cents but not over 10 cents each

The general column one rate of duty for this subheading is 0.3
cents each.

9615.11.30     [c]ombs, hair-slides and the like; hairpins,
               curling pins, curling grips, hair-curlers and the
               like, other than those of heading 8516, and parts
               thereof: [c]ombs, hair-slides, and the like: [o]f
               hard rubber or plastics: [c]ombs: [v]alued over
               $4.50 per gross: [o]ther

The general column one rate of duty for this subheading is 28.8
cents/gross + 4.6% ad valorem.

ISSUE:

     Whether the combination brush/comb is classifiable as a
brush or a comb?

LAW AND ANALYSIS:

     Classification of merchandise under the HTSUS is in
accordance with the General Rules of Interpretation (GRI's),
taken in order.  GRI 1, HTSUS, states in part that for legal
purposes, classification shall be determined according to the
terms of the headings and any relative section or chapter notes. 

     Protestant argues that heading 9603, HTSUS, is the only
heading which describes the merchandise.  Further, heading 9615,
HTSUS, only describes combs used on hair.  

     In understanding the language of the HTSUS, the Harmonized
Commodity Description and Coding System Explanatory Notes may be
consulted.  The Explanatory Notes (EN), although not dispositive,
are to be used to determine the proper interpretation of the
HTSUS.  54 Fed. Reg. 35127, 35128, (August 23, 1989).  EN 96.15,
pg.1611, states, in pertinent part that:

     [t]his heading covers:
     
     (1) Toilet combs of all kinds, including combs for animals.


Inasmuch as the combination brush/comb is described by two
headings, it cannot be classified according to GRI 1.

     GRI 2(a) is inapplicable because it applies to incomplete or
unfinished articles, and the combination brush/comb is imported
in a finished complete condition.  GRI 2(b) states, in pertinent
part, that any reference in a heading to a material or substance
shall be taken to include a reference to mixtures or combinations
of that material or substance with other materials or substances. 
The classification of goods consisting of more than one material
or substance shall be according to the principles of GRI 3.

     GRI 3 states that when, by application of rule 2(b) or for
any other reason, goods are, prima facie, classifiable under two
or more headings, classification shall be effected as follows:

     (a)  The heading which provides the most specific
     description shall be preferred to headings providing a more
     general description.  However, when two or more headings
     each refer to part only of the materials or substances
     contained in mixed or composite goods or to part only of the
     items in a set put up for retail sale, those headings are to
     be regarded as equally specific in relation to those goods,
     even if one of them gives a more complete or precise
     description of the goods.  

     Protestant argues that the combination comb/brush is more
specifically described by heading 9603, HTSUS, because it
provides for cosmetic brushes while heading 9615, HTSUS, provides
for combs generally.  We disagree.  These two headings both refer
to only a part of the composite article; one to the cosmetic
brush portion and one to the comb portion.  Therefore, the
headings are considered equally specific and GRI 3(b) must be
examined.

     GRI 3(b) states:

     (b)  Mixtures, composite goods consisting of different
     materials or made up of different components, and goods put
     up for retail sale, which cannot be classified by reference
     to 3(a), shall be classified as if they consisted of the
     material or component which gives them their essential
     character, insofar as this criterion is applicable.

According to EN GR 3, pg.4, the factor which determines essential
character will vary as between different kinds of goods.  It may
for example, be determined by the nature of the material or
component, its bulk, quantity, weight or value, or by the role of
a constituent material in relation to the use of the goods.

     Protestant states that the article has two parts and may be
considered 50% comb and 50% brush.  We agree.  Because neither
the comb nor the brush constitute the articles essential
character, GRI 3(c) must be applied.

     GRI 3(c) states:

     When goods cannot be classified by reference to 3(a) or
     3(b), they shall be classified under the heading which
     occurs last in numerical order among those which equally
     merit consideration.

The heading which appears last in numerical order is heading
9615, HTSUS.  Therefore, the combination brush/comb is
classifiable in heading 9615, HTSUS, specifically, subheading
9615.11.30, HTSUS.  

     See Headquarters Ruling Letter 953537 dated June 16, 1993,
which held that a combination comb/brush, which was an individual
component packaged with others and put up for retail sale as the
"Looks Good Cosmetics Caddy", was classifiable in subheading
6915.11.30, HTSUS.

HOLDING:

     For the foregoing reasons we find that the combination
brush/comb is classifiable in subheading 9615.11.30, HTSUS, as a
comb.

     In accordance with Section 3A (11)(b) of Customs Directive
0993550-065, dated August 4, 1993, Subject: Revised Protest
Directive, this decision, together with the Customs Form 19,
should be mailed by your office to the protestant no later than
60 days from the date of this letter.  Any reliquidation of the
entry in accordance with the decision must be accomplished prior
to mailing of the decision.  Sixty days from the date of the
decision, the Office of Regulations and Rulings will take steps
to make the decision available to Customs personnel via the
Customs Ruling Module in ACS and the public via the Diskette
Subscription Service, Lexis, Freedom of Information Act and other
public access channels. 


                                        Sincerely,



                                        John Durant, Director 
                                        Commercial Rulings