CLA-2 CO:R:C:T 955790
Mr. Tien-Chin Liang Lou
Verseau International
240 East 76th Street
Apt. #3M
New York, NY 10021
RE: Cosmetic wipes; heading 5603; country of origin
determination for fabric made in Japan and cut to size and
packaged in Taiwan; 19 CFR 12.130; HRL 734576
Dear Mr. Lou:
This is in response to your letter, dated December 30, 1993,
in which you requested the tariff classification, country of origin
and quota/visa status for a cosmetic wipe. A sample of the product
was submitted for our examination.
FACTS:
The merchandise in question consists of cosmetic wipes that
are generally used for removing make-up. They are made of a
nonwoven fabric comprised of a blend of cotton and rayon man-made
fibers. The wipes are rectangular in shape and measure 3.1 inches
by 2.1 inches. The final packaged product will contain 90 wipes
and will measure 7 inches by 2 inches by 2.5 inches.
The nonwoven fabric is manufactured in Japan and further
processed in Taiwan. In Taiwan, the fabric is cut to size and
packaged for export to the U.S.
ISSUE:
What is the tariff classification of the cosmetic wipes under
the Harmonized Tariff Schedule of the United States (HTSUS)?
What is the country of origin of the cosmetic wipes for
visa/quota purposes?
What is the country of origin of the cosmetic wipes for
marking purposes?
LAW AND ANALYSIS:
CLASSIFICATION OF THE COSMETIC WIPES
The classification of goods under the HTSUS is governed by
the General Rules of Interpretation (GRIs), taken in order. GRI
1 provides that classification shall be determined according to
the terms of the headings 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 otherwise
require, the remaining GRI's may be applied, taken in order.
Heading 5603, HTSUS, provides for "[n]onwovens, whether or
not impregnated, coated, covered or laminated." As the wipes in
question are made of a nonwoven fabric, they are classifiable in
this heading pursuant to GRI 1. Specifically, they are
classifiable in subheading 5603.00.9090, HTSUS, which provides for
"[n]onwovens, whether or not impregnated, coated, covered or
laminated: [o]ther: [o]ther: [o]ther nonwovens whether or not
impregnated, coated or covered: [o]ther: [o]f staple fibers."
COUNTRY OF ORIGIN AND MARKING REQUIREMENTS
Section 304 of the Tariff Act of 1930, as amended (19 U.S.C.
1304), provides that, unless excepted, every article of foreign
origin imported into the U.S. shall be marked in a conspicuous
place as legibly, indelibly, and permanently as the nature of the
article (or container) will permit, in such a manner as to indicate
to the ultimate purchaser in the U.S. the English name of the
country of origin of the article. The Court of International Trade
stated in Koro North America v. United States, 701 F.Supp. 229, 12
CIT 1120 (CIT 198), that "In ascertaining what constitutes the
country of origin under the marking statute, a court must look at
the sense in which the term is used in the statute, giving
reference to the purpose of the particular legislation involved."
The purpose of the marking statute is outlined in United States v.
Friedlaender & Co., 27 CCPA 297 at 302, C.A.D. 104 (1940), where
the court stated that: "Congress intended that the ultimate
purchaser should be able to know by inspection of the marking on
the imported goods the country of which the goods is the product.
The evident purpose is to mark the goods so that at the time of the
purchase the ultimate purchaser may, by knowing where the goods
were produced, be able to buy or refuse to buy them, if such
marking should influence his will."
Section 12.130 of the Customs Regulations (19 CFR 12.130),
sets forth the principles for making country of origin
determinations for textiles and textile products subject to Section
204 of the Agricultural Act of 1956, as amended (7 U.S.C. 1854).
According to T.D. 90-17, published in the Federal Register on March
1, 1990, (55 FR 7303), the principles of country of origin for
textiles and textile products contained in 19 CFR 12.130 are
applicable to such merchandise for all purposes, including duty and
marking. Customs has determined that 19 CFR 12.130 will be applied
to determine the country of origin of all imported articles which
are classified in Section XI, HTSUS, or to any imported article
classified outside of Section XI, HTSUS, under a subheading which
has a textile category number associated with it. Because the
subject merchandise is classifiable in Section XI, HTSUS, 19 CFR
12.130 will be used in making the country of origin determination.
Section 12.130 provides that a textile product that is
processed in more than one country or territory shall be a product
of that country or territory where it last underwent a substantial
transformation. A textile or textile product will be considered
to have undergone a substantial transformation if it has been
transformed by means of substantial manufacturing or processing
operations into a new and different article of commerce.
Section 12.130(d) of the Customs Regulations sets forth
criteria for determining whether a substantial transformation of
a textile product has taken place. This regulation states that
these criteria are not exhaustive; one or any combination of
criteria may be determinative, and additional factors may be
considered.
Section 12.130(d)(1) of the Customs Regulations states that
a new and different article of commerce will usually result from
a manufacturing or processing operation if there is a change in:
(i) Commercial designation or identity,
(ii) Fundamental character or
(iii) Commercial use.
Section 12.130(d)(2) of the Customs Regulations states that
in determining whether merchandise has been subjected to
substantial manufacturing or processing operations, the following
will be considered:
(i) The physical change in the material or article as
a result of the manufacturing or processing operations
in each foreign territory or country, or insular
possession of the U.S.
(ii) The time involved in the manufacturing or
processing operations in each foreign territory or
country, or insular possession of the U.S.
(iii) The complexity of the manufacturing or processing
operations in each foreign territory or country, or
insular possession of the U.S.
(iv) The level or degree of skill and/or technology
required in the manufacturing or processing operations
in each foreign territory or country, or insular
possession of the U.S.
(v) The value added to the article or material in
each foreign territory or country, or insular
possession of the U.S., compared to its value when
imported into the U.S.
Section 12.130(e)(2) of the Customs Regulations provides that
an article will not be considered to be a product of a particular
foreign country by virtue of merely having undergone:
(ii) Cutting to length or width and hemming or overlocking
fabrics which are readily identifiable as being intended for
a particular commercial use;
In Headquarters Ruling Letter 734576, dated February 17, 1993,
we applied Section 12.130(e)(2)(ii) in determining the country of
origin and marking for wiping cloths used to clean lenses. These
wiping clothes were constructed of Japanese origin herringbone
weave fabric that was made of 100% polyester filament yarn. The
fabric was sent to Canada where it was cut to dimensions of 12 x
13 cm and 9 x 19 cm, respectively. The first cloth had pinked
edges and the second one had edges finished with an overcast
stitch. The clothes were packaged in plastic pouches before being
shipped to the U.S.
Customs held that the Japanese origin fabric was highly
specialized and intended for use in cleaning. The fabric imparted
the most important properties of the finished wiping cloth. In
comparison, in Canada, the fabric was merely cut to length and
width, and in some cases overcast stitched and packaged. These
operations were not considered to be substantial processing as they
did not require much time, were not complex and did not require a
high degree of skill or technology as compared with the forming of
the fabric. Therefore, based on 19 CFR 12.130(e)(2)(ii), Customs
determined that the fabric was not substantially transformed in
Canada and the country of origin of the wiping cloths for all
purposes, including marking, was Japan.
Similarly, in the instant case, the fabric that is formed in
Japan is specialized for use as a wipe and it imparts the most
important properties of the finished article. In addition, the
only processing performed in Taiwan is cutting the fabric to size,
then folding and packaging it. As stated above, these are not
considered substantial processing operations. Thus, as the
operations which take place in Taiwan are not sufficient to perfect
a change in the country of origin, Japan is the country of origin
of these articles.
Finally, as we have determined that the country of origin of
the imported cosmetic wipes is Japan, it is acceptable to mark the
article with the phrase "Textile Made in Japan" or "Made in Japan",
provided that the marking is conspicuous, legible and permanent.
HOLDING:
The cosmetic wipes are classifiable in heading 5603.00.9090,
HTSUS, and the rate of duty is 12.5% ad valorem. A visa is
required under textile category code 223.
The country of origin of the imported cosmetic wipes processed
in the manner described above for marking and quota purposes is
Japan as that is where the fabric is manufactured.
The holding set forth above applies only to the specific
factual situation and merchandise identified in the ruling request.
This position is clearly set forth in section
177.9(b)(1), Customs Regulations (19 CFR 177.9(b)(1)). This
section states that a ruling letter is issued on the assumption
that all the information furnished in connection with the ruling
request and incorporated in the ruling letter, either directly,
by reference, or by implication, is accurate and complete in every
material respect. Should it subsequently be determined that the
information furnished is not complete and does not
comply with 19 CFR 177.9(b)(1), the ruling will be subject to
modification or revocation. In the event there is a change in the
facts previously furnished, this may affect the determination of
country of origin. Accordingly, it is recommended that a new
ruling request be submitted in accordance with section 177.2,
Customs Regulations (19 CFR 177.2).
The designated textile and apparel categories 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 the importer
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