HQ 085809

November 7, 1989

CLA-2 CO:R:C:G 085809 HP

CATEGORY: Classification

TARIFF NO.: 3307.90.0000

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