CLA-2 RR:TC:FC 959660 RC
Ms. Mary Jo Muoio
Barthco International Inc.
Hemisphere Center
Routes 1 & 9 South
Newark, New Jersey 07114
RE: Soaps and Towel Sets
Dear Ms. Muoio:
This is in response to your letter of June 24, 1996,
requesting a binding classification and country of origin marking
ruling for Precious Day Soaps and Towel Sets under the Harmonized
Tariff Schedule of the United States Annotated (HTSUSA) on behalf
of your client, POLA U.S.A., Inc.
FACTS:
The instant set consists of seven flower-shaped bath soaps
and a rose-embroidered cotton bath towel. The items, made in
Japan, are packaged for retail sale in cardboard boxes with
removable cardboard sheathing. The importer wishes to indicate
the country of origin on the bottom of the retail package
sheathing rather than on the individual items. The sample shows
the proposed country of origin marking "Made in Japan" in
approximately 10 points appearing on the bottom of the box and on
the bottom of the sheathing, just below a listing of the set
contents.
(A point is a unit of type measurement equal to 0.01384 inch or
nearly 1/72 inch, and all type sizes are multiples of this unit.)
ISSUES:
(1) Whether the articles at issue are properly classified as
sets under the provision for soap or textile articles.
(2) Whether the proposed marking of the sets satisfies the
country of origin marking requirements.
LAW AND ANALYSIS:
The General Rules of Interpretation (GRI's) set forth the
manner in which merchandise is to be classified under the HTSUSA.
GRI 1 requires that classification be determined first according
to the terms of the headings of the tariff and any relative
section or chapter notes and, unless otherwise required,
according to the remaining GRI's, taken in order.
In the instant case, the first issue to be considered is
whether the bath soap and towel items are included together as a
set under one heading in the Nomenclature. The relevant
subheadings at issue in this case are set forth below. The soaps
are classifiable under subheading 3401.11.5000, HTSUSA, the
provision for soap preparations in the form of molded pieces or
shapes for toilet use. Classification of the bath towel is under
subheading 6302.60.0020, HTSUSA, the provision for toilet linen
of terry toweling, of cotton.
Classification cannot be determined by application of GRI 1,
because no single heading covers the subject merchandise.
Consequently, we refer to the subsequent GRI's. GRI 2 does not
apply because the instant items are not incomplete or unfinished
articles nor are they mixtures or combinations of goods. GRI 3,
however, provides, in pertinent part:
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.
(b) Mixtures, composite goods consisting of different
materials or made up of different components, and
goods put up in sets 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.
Explanatory Note X to GRI 3(b) to the HTSUSA, which
constitutes the official interpretation of the tariff at the
international level, provides, in part:
(X) For the purposes of this Rule, the term "goods put up
in sets for retail sale" shall be taken to mean goods
which:
(a) consist of at least two different articles which
are, prima facie, classifiable in different
headings;
(b) consist of products or articles put up together to
meet a particular need or carry out a specific
activity; and
(c) are put up in a manner suitable for sale directly
to users without repacking (e.g., in boxes or
cases or on boards).
In the instant case, the items qualify as a set within the
meaning of GRI 3 because the items, bath soap and a towel,
classifiable in different headings, will be used together for
bathing. Furthermore, the items are presented in a box packaged
for retail sale, demonstrating that these items are normally sold
as a set directly to users without repacking.
With respect to GRI 3(a), we note that no heading more
specifically describes the goods at issue. In turn, we must
determine which component, if any, imparts the essential
character of the sets pursuant to GRI 3(b).
Explanatory Note VIII to GRI 3(b) states that:
(VIII) 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.
The essential character of the bath sets is not readily
apparent. Each component plays an important role in the function
of the set. No one item in the set has predominant qualities
that make the set distinctive. Moreover, the items seem to be of
comparable value.
When, as in the instant case, the component that gives a set
its essential character cannot be determined, classification is
ascertained by utilizing GRI 3(c). GRI 3(c) provides:
(c) 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.
Applying GRI 3(c), the bath sets are classified under the
provision for toilet linen of terry toweling or similar terry
fabrics, of cotton, subheading 6302.60.0020, HTSUSA, since
between the soap and the towel, the provision for the towel
appears last in numerical order in the Nomenclature.
The marking statute, section 304, Tariff Act of 1930, as
amended (19 U.S.C. 1304), provides that, unless excepted, every
article of foreign origin (or its container) imported into the
U.S. shall be marked in a conspicuous place as legibly,
indelibly, and permanently as the nature of the article (or its
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. Part 134, Customs Regulations (19 CFR
Part 134), implements the country of origin marking requirements
and exceptions of 19 U.S.C. 1304.
The country of origin for marking purposes is defined by
section 134.1(b), Customs Regulations (19 CFR 134.1(b)), to mean
the country of manufacture, production, or growth of any article
of foreign origin entering the U.S. In the instant case, the
country of origin is Japan.
Section 134.1(d), Customs Regulations, (19 CFR 134.1(d)),
defines the "ultimate purchaser" generally as the last person in
the United States who will receive the article in the form in
which it was imported. The marking must be conspicuous to the
ultimate purchaser.
According to section 134.32(d), Customs Regulations (19 CFR
134.32(d)), articles whose containers are marked to reasonably
indicate the origin of the articles are themselves excepted from
marking requirements. For the marking of the container to be
adequate, Customs must be satisfied that in all reasonably
foreseeable circumstances the article will reach the ultimate
purchaser in said properly marked container.
In Headquarters Ruling Letter (HRL) 732256 (January 26,
1990), Customs held that baby toys imported and sold in properly
marked retail boxes were excepted from individual marking.
There, the acceptable country of origin markings were at least
1/8-inch which is approximately 9 points. The unacceptable
country of origin markings were 1/16-inch or approximately 4.5
points.
In the instant case, the retail box markings are similar in
size to the markings reviewed in HRL 732256. Although located on
the bottom panel, we note that the markings are near the only
references to an itemized list of the box contents. The location
of the markings on the bottom panel are visible upon casual
inspection. They appear in clearly contrasting colors against
their background and no other writing appears in the immediate
vicinity to distract the ultimate purchaser. In sum, it is in
our opinion that the markings are in conspicuous places and
legible.
HOLDING:
The instant bath set falls into subheading 6302.60.0020,
HTSUSA, under textile category 363. The rate of duty is 10.1
percent ad valorem.
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 issuance
of the U.S. Customs Service, which is updated weekly and is
available 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.
The proposed "Made in Japan" country of origin markings
appear in conspicuous places and satisfy the requirements of
section 304 of the Tariff Act, as amended, and Part 134, Customs
Regulations.
Sincerely,
John Durant, Director
Tariff Classification
Appeals Division