CLA-2 CO:R:C:G 085809 HP
Ms. Carol A. Garrity
Import Coordinator
Garrett-Hewitt International Inc.
901 North Broadway - Suite 16
North White Plains, NY 10603
RE: Nonwoven wet tissue paper impregnated with fragrance,
ethanol, benzalkonium
chloride, glycerine, and distilled water is other perfumery,
cosmetic or toiletry
preparation.soap;surface-active;washing;detergent;3401
Dear Ms. Garrity:
This is in reply to your letter of August 16, 1989,
concerning the tariff
classification of nonwoven tissue paper, produced in Japan, under
the Harmonized
Tariff Schedule of the United States Annotated (HTSUSA).
FACTS:
The merchandise at issue consists of 100% nonwoven cellulose
fibers, formed
into tissues for either bulk packaging or retail sale, and
impregnated with 0.15%
fragrance, 7.5% ethanol, 0.04% benzalkonium chloride, 0.65%
glycerine, and 91.66%
distilled water. Benzalkonium chloride is defined in The
Condensed Chemical
Dictionary (7th Ed.) (Reinhold Book Co. 1966) at 105, as a "[t]
ypical quaternary
ammonium salt", a mixture of alkyl dimethylbenzylammonium
chlorides of the general
formula C6H5CH2N(CH3)2RCl, in which R is a mixture of the alkyls
of C8H17 to C18H37.
Very soluble in water, its uses are as a cationic detergent,
surface antiseptic, and
fungicide. The products are sold in plastic packets for use in
removing make-
up and other functions relating to cleaning the skin.
ISSUE:
Whether the instant merchandise is classifiable under
heading 3401 of the
HTSUSA?
LAW AND ANALYSIS:
Heading 5603, HTSUSA, provides for nonwovens, whether or not
impregnated.
The General Rules of Interpretation (GRIs) to the HTSUSA govern
the classification
of goods in the tariff schedule. GRI 1 states, in pertinent part
:
... classification shall be determined according to the terms of the
headings and any relative section or chapter notes ....
Goods which cannot be classified in accordance with GRI 1 are to be
classified in
accordance with GRIs 2 through 4, taken in order.
Note 1 to Chapter 56, HTSUSA excludes from this chapter
(a)Wadding, felt or nonwovens, impregnated, coated or
covered with substances or preparations (for
example, perfumes or cosmetics of chapter 33, soaps
or detergents of heading 3401 ...) where the textile
material is present merely as a carrying medium....
This exclusion clearly applies to the instant merchandise. It is the
impreg
nating substance which is significant to the consumer; the nonwoven merely
acts
as a conveyance. Classification in heading 5603, therefore, is incorrect.
Heading 3401, HTSUSA, provides for, inter alia, nonwovens, impregnated
,
coated or covered with soap or detergent. The Explanatory Notes (EN) to
the
HTSUSA constitute the official interpretation of the tariff at the
international level.
The EN to this heading excludes "(e) organic surface-active ... prepara
tions and
washing preparations ...of heading 34.02.
Subheading 3402.20, HTSUSA, provides for surface-active preparations,
washing preparations and cleaning preparations, other than those of heading
3401.
The EN to heading 3402 recognizes that organic surface-active agents may be
(I) ORGANIC SURFACE-ACTIVE AGENTS (OTHER THAN SOAP)
* * *
(2)Cationic, in which case they ionise [sic.] in aqueous
solution to produce positively charged organic ions
responsible for the surface activity. Examples are:
salts of ... quaternary ammonium bases.
As we mentioned above, benzalkonium chloride is a typical quaternary
ammonium salt. The EN goes on to describe surface-active preparations as
including
(3)Other mixtures based on a surface-active agent of
Part (I) above (e.g., surface-active preparations
containing a portion of soap, such as alkylben
zenesulphonate with sodium stearate).
* * *
Surface-active preparations [described above] are
used for their cleansing, wetting emulsifying or dispers
ing properties in many industrial applications, for example
as:
(i)Detergents for the textile industry, to eliminate fats
and soiling matter on textiles during manufacture
and finishing.
(ii)Wetting agents, emulsifying agents, fulling assis
tants and brightening agents, for the textile
industry.
(iii)Soaking agents (for raw hides), de-greasing agents,
wetting agents (for use in dyeing), levelling agents
or toners for the leather or fur industries.
(iv)Basic materials for the manufacture of washing
preparations....
(v)Dispersing agents for the paper or synthetic
rubber industries.
(vi)Flotation aids for the mining industry.
(vii)Emulsifying agents used in the preparation of
pharmaceutical or cosmetic products.
It is our opinion that the instant merchandise is not the type of
surface-
active preparation provided for by this subheading. Used in industrial
applica
tions, the exemplars listed in the EN make clear the intention of the
drafters of the
tariff schedule not to consider these types of personal wipes as "surface-
active
preparations."
Subheading 3402.20, HTSUSA, also provides for washing and cleaning
preparations, having a basis of organic surface-active agents. The EN to
this
heading describes these preparations as follows:
(B)Washing preparations (including auxiliary washing preparations)
and cleaning preparations, having a basis of soap or other
organic surface-active agents.
* * *
These preparations act on surfaces by bringing the
soil on the surface into a state of solution or dispersion.
Washing preparations based on surface-active
agents are also known as detergents. This type of
preparation is used for washing clothes and also dishes
or kitchen utensils.
* * *
Auxiliary washing preparations are used for soaking
(pre-washing), rinsing or bleaching clothes, household
linens, etc.
Cleaning preparations serve for cleaning floors,
windows or other surfaces. They may also contain small
quantities of odoriferous substances.
It is clear that, based upon the argument above, the instant
merchandise is
neither a washing preparation nor a cleaning preparation under this heading
.
Therefore, classification in heading 3402 is precluded.
Returning to heading 3401, HTSUSA, organic surface-active products and
preparations for use as soap, are covered only when in the form or bars,
cakes, or
molded pieces or shapes. Although impregnated nonwovens are provided for,
the
impregnating material can only be soap or detergent. The instant
merchandise
contains only 0.04% surface-active product. It is our opinion that when
added in
such infinitesimal quantities, the benzalkonium chloride is used for its
germicidal
or fungicidal properties. Therefore, the nonwoven material is not
impregnated with
a soap or detergent, and the wet tissue is not a product of heading 3401.
Heading 3307, HTSUSA, provides for perfumery, cosmetic or toilet
prepara
tions. Note 3 to Chapter 33 states:
The expression "perfumery, cosmetic or toilet prepara
tions" in heading 3307 applies, inter alia, to the following
products: ... wadding, felt and nonwovens, impregnated,
coated or covered with perfume or cosmetics.
The wet tissue is impregnated with only 0.15% fragrance, as well as
several
other ingredients. Since the tissues are more than merely perfumed, and
taking
into account the relatively insignificant amount of fragrance, we feel that
without
further evidence of the drafter's intent to include articles similar to the
instant
merchandise in this heading, the wet towels would not be classifiable
herein.
The General EN to Chapter 33 provides:
The products of headings 33.03 to 33.07 remain in
these headings whether or not they contain subsidiary
pharmaceutical or disinfectant constituents, or are held
out as having subsidiary therapeutic or prophylactic
value ....
Since the Explanatory Note allows us to discount the presence of the
subsidiary
constituents for classification purposes under headings 3303 to 3307, it is
our
opinion that the wet towels are now classifiable as other perfumery,
cosmetic or
toilet preparations.
HOLDING:
As a result of the foregoing, the instant merchandise is classified
under
subheading 3307.90.0000, HTSUSA, as pre-shave, shaving or after-shave
prepar
ations, personal deodorants, bath preparations, depilatories and other
perfumery,
cosmetic or toilet preparations, not elsewhere specified or included,
prepared room
deodorizers, whether or not perfumed or having disinfectant properties,
other.
The applicable rate of duty is 5.4 percent ad valorem.
Sincerely,
John Durant, Director
Commercial Rulings Division