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