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HQ 959660

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January 16, 1997

CLA-2 RR:TC:FC 959660 RC

CATEGORY: CLASSIFICATION MARKING

TARIFF NO.: 6302.60.0030

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

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See also:

• Tariff No.: 3401.11.50 - Soap, nesoi; organic surface-active products used as soap, in bars, cakes, pieces, soap-impregnated paper, wadding, felt, for toilet use
• Tariff No.: 6302.60.00 - Toilet linen and kitchen linen, of terry toweling or similar terry fabrics, of cotton