CLA-2 CO:R:C:T 088173 JS
Cameron Murphy
IC Systems Ltd.
P.O.Box 3853
Vancouver, B.C.
Canada V6B 3Z3
RE: Disposable Protection Kit; Classifiable Subheading
6210.10.4010
Dear Mr. Murphy:
This is in response to your letter of November 6, 1990,
requesting classification of a disposable protection kit under
the Harmonized Tariff Schedule of the United States Annotated
(HTSUSA).
FACTS:
The sample provided for our inspection is contained in a
cardboard box printed with the following:
DISPOSABLE PROTECTION KIT
A self-contained kit containing protective apparel
for use by individuals who may be exposed to blood
and bodily fluid spills.
The sides of the box list the various articles contained therein.
These include a Tyvek protection suit, one pair of latex gloves,
two Tecnol masks and a large plastic bag for solid waste.
Literature which was enclosed with your request also
identifies the Disposable Protection Kit as a "compact single-use
unit which contains the necessary components to protect
you...from potentially infectious blood and body fluids," and
further explains that it is designed for personnel in
correctional institutions, police departments, detox centers,
nursing homes, public and occupational health facilities, and
other workplaces where there is a risk of disease transmission.
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The Tyvek suit is made of spunbonded olefin fibers
manufactured by Dupont in the United States, and then imported
into Canada where they are sewn into the completed garment. It
has a coverall construction, with a zipper closure along the
front length, a collar, and elastic tightening at the ends of
the long sleeves and pants legs. There is also an elastic
tightening in the waist at the back of the garment. You state
that the Tyvek suit comprises 60 percent of the total cost of the
kit.
The gloves are seamless and made in Malaysia of an opaque
latex material.
A Tecnol representative stated that the Tecnol High
Filtration Iso Mask is made of a lightweight paper pulp. It is
specially folded to fan out over and cover the mouth, a
construction which is also known as a "surgical mask pleat
design." Two stretch loops which fit over the ears are sewn
into either side of the mask. The top edge of the mask has a
wire insert which can be bent to conform securely over the nose
when worn. This product is manufactured in the United States, as
is the following mask of the same brand.
The Tecnol FluidShield TM surgical mask is said to be made
of a wet lay non-woven paper pulp material, which is formed into
an outerfacing, a filter media, Loncet TM Breathable Film and
innerfacing. The top of this mask has an aluminum wire insert
which allows a contour fit, and a plastic visor attachment,
called a "splashguard visor," which protects the eye area.
The red plastic bag measures 76.4 cm x 96.6 cm, and is
manufactured in British Columbia, Canada.
ISSUE:
1) Is the disposable protection kit "goods put up in sets
for retail sale" within the meaning of GRI 3, HTSUSA?
2) If considered a set, which item(s) provides the
essential character for classification under the
HTSUSA?
3) Are such products eligible for duty reduction under
the United States-Canada Free-Trade Agreement
Implementation Act of 1988 (FTA), or, in the
alternative, for a duty exemption under subheading
9801.00.10 and/or 9802.00.80, HTSUSA?
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LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA is in
accordance with the General Rules of Interpretation (GRI), taken
in order. GRI 1 provides that the classification shall be
determined according to the terms of the headings and any
relevant section or chapter notes. Where goods cannot be
classified solely on the basis of GRI 1, and if the headings and
legal notes do not otherwise require, the remaining GRI many be
applied, taken in order.
GRI 3 states, 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 affected 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 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.
Since the protection kit at issue consists of, at least,
both textile and rubber articles, which are separately provided
for in the Nomenclature, GRI 3(b) applies as follows:
(b) ...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.
Explanatory Note X to GRI 3(b) of 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;
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(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 in
cases or on boards).
In this case, the items qualify as a set within the meaning
of GRI 3. The Tyvek suit, for instance, is classifiable within
heading 6210, HTSUSA, as non-woven disposable apparel of textile,
and the latex gloves are classified under heading 4015, HTSUSA,
which provides for, inter alia, clothing accessories (including
gloves) of rubber. The protection kit, therefore, consists of at
least two different articles which are classifiable in different
headings. Moreover, the kit contains articles which are intended
for use during a surgical or emergency procedure to protect
against splattering body fluids, and it is packaged in a box,
ready to use.
Since the protection kit is a set, and classification of
its component parts cannot be made pursuant to GRI 3(a), we must
determine the essential character of the set in accordance with
GRI 3(b).
Explanatory Note VIII to GRI 3(b) states that:
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.
In this case, the essential character of the disposable
protection kit is not readily apparent. Each component plays a
significant role in protecting the wearer from the possibility of
contamination in a potentially infectious environment. No single
item imparts a unique character to the function of the set as a
whole; the exposure of any body part that the set is designed to
protect may result in the contamination of the person. For
instance, it is equally important that the main body area,
protected by the Tyvek suit, as well as the face and hands,
protected by the masks and gloves, are covered to prevent
contamination. Moreover, none of the factors set out by EN VIII
prove determinative when the purpose of the present set is
considered.
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When, as in the instant case, the component which gives the
goods at issue their essential character cannot be determined,
classification is ascertained by utilizing GRI 3(c). GRI 3(c)
provides:
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.
Thus, the competing provisions are as follows:
The Tyvek suit is made of spunbonded olefin fibers, which is
classified as a textile fabric. Classification is therefore
appropriate under subheading 6210.10.4010, HTSUSA, which provides
for garments, made up of fabrics of heading 5602, 5603, 5903,
5906 or 5907: of fabrics of heading 5602 or 5603: other, non-
woven disposable apparel designed for use in hospitals, clinics,
laboratories or contaminated areas. See, HRL 086972 issued July
12, 1990 (Tyvek is a non-woven fabric of heading 5603 thereby
classifiable in heading 6210, HTSUSA).
The Tecnol masks are made of paper pulp and as such are
classified under subheading 4818.50.0000, HTSUSA, which provides
for toilet paper, handkerchiefs, cleansing tissues, towels,
tablecloths, table napkins, diapers, tampons, bed sheets and
similar household, sanitary or hospital articles, articles of
apparel and clothing accessories, of paper pulp, paper, cellulose
wadding or webs of cellulose fibers: articles of apparel and
clothing accessories.
The latex gloves are provided for under subheading
4015.11.0000, as articles of apparel and clothing accessories
(including gloves), for all purposes, of vulcanized rubber other
than hard rubber: gloves: surgical and medical.
The red plastic bag is classified under subheading
3923.21.0090, which provides for articles for the conveyance or
packing of goods, of plastics; stoppers, lids, caps and other
closures, of plastics: sacks and bags (including cones): of
polymers of ethylene, other.
Applying GRI 3(c), the disposable protection kit is
classified under heading 6210, HTSUSA, which appears last in
numerical order among the competing headings which equally merit
consideration.
Certain articles from Canada are eligible for special tariff
treatment under the United States-Canada Free Trade Agreement
Implementation Act of 1988. Subdivision (vii)(A) provides that
"[g]oods originating in...Canada" and imported into the United
States may be subject to a different rate of duty set forth in
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the "Special" subcolumn of the Tariff Schedule. For the purpose
of this subdivision, General Note 3(c)(vii)(B) allows
consideration of goods as "goods originating in the territory of
Canada" if:
(2) they have been transformed in the territory of
Canada and/or the United States, so as to be
subject--
(I) to a change in tariff classification as
described in the rules of subdivision
(c)(vii)(R) of this note, or
(II) to such other requirements subdivision
(c)(vii)(R) of this note may provide when no
change in tariff classification occurs, and
they meet the other conditions set out in
subdivisions (c)(vii)(F),(G),(H),(I),(J) and
(R) of this note.
The term "goods," as used in the provisions above, refers to, in
this instance, the Disposable Protection Kits which are imported
into the United States from Canada. However, General Note
3(c)(vii)(C) states, in relevant part, that
Goods shall not be considered to originate in the territory
of Canada pursuant to subdivision (c)(vii)(B)(2) merely by
virtue of having undergone--
(1) simple packaging, or except as provided by the
rules of subdivision (c)(vii)(R) of this note,
combining operations
Therefore, since the entire kit, rather than the components
individually, constitute the goods in question, and since the
goods at issue are the product of simple combining and packaging
operations, the Disposable Protection Kit is not eligible as
goods originating in the territory of Canada. A duty reduction
pursuant to the FTA is therefore inapplicable, and this
merchandise will be subject to the "General" rate of duty at 17
percent ad valorem.
There may, however, be duty benefits derived from the
applicability of subheading 9801.00.10 and 9802.0080, HTSUS, to
certain of the component parts of the set at issue. HTSUS
subheading 9801.00.10 provides for the free entry of U.S.
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products that are exported and returned without having been
advanced in value or improved in condition by any means while
abroad, provided the documentary requirements of section 10.1,
Customs Regulations (19 C.F.R. 10.1), are met. In Superscope,
Inc. v. United States, 13 CIT , 727 F.Supp. 629 (CIT 1989), the
court found that glass panels of U.S. manufacture that were
exported, packaged with other components to make unassembled
stereo cabinets, and then imported into the U.S. as an entirety
were not advanced in value or improved in condition while abroad,
but were merely repacked. Therefore, the court held that the
glass panels were entitled to duty free entry under item 800.00,
Tariff Schedules of the United States (TSUS) (the precursor
provision to HTSUSA subheading 9801.00.10).
With regard to the Tecnol masks, the operations performed in
Canada consist merely of repackaging the U.S. products with the
foreign components. Therefore, as the mere packaging of U.S.
products with other products does not advance in value or improve
in condition the U.S. products, the portion of the protection kit
consisting of U.S. products, the Tecnol masks, will be eligible
for duty exemption under HTSUS subheading 9801.00.10. This
assumes that the documentation requirements of 19 C.F.R. 10.1 are
met and that the district director of Customs at the port of
entry is satisfied of the U.S. origin of each product claimed to
be entitled to this duty exemption.
Subheading 9802.00.80, HTSUS, provides a partial duty
exemption for:
(a)rticles assembled abroad in whole or in part of
fabricated components, the product of the United States,
which (a) were exported in condition ready for assembly
without further fabrication, (b) have not lost their
physical identity in such articles by change in form, shape,
or otherwise, and (c) have not been advanced in value or
improved in condition abroad except by being assembled and
except by operations incidental to the assembly process,
such as cleaning, lubricating, and painting.
All three requirements of HTSUS subheading 9802.00.80 must be
satisfied before a component may receive a duty allowance. An
article entered under this tariff provision is subject to duty
upon the full cost or value of the imported assembled article,
less the cost or value of the U.S. components assembled therein,
upon compliance with the documentary requirements of section
10.24, Customs Regulations (19 CFR 10.24).
Section 10.16(a), Customs Regulations (19 CFR 10.16(a)),
provides that the assembly operation performed abroad may consist
of any method used to join or fit together solid components, such
as welding, soldering, riveting, force fitting, gluing,
laminating, sewing, or the use of fasteners.
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Operations incidental to the assembly process are not
considered further fabrication operations, as they are of a
minor nature and cannot always be provided for in advance of the
assembly operations. However, any significant process, operation
or treatment whose primary purpose is the fabrication,
completion, physical or chemical improvement of a component
precludes the application of the exemption under HTSUS subheading
9802.00.80 to that component.
With regard to the Tyvek suit, you state that the fabric is
manufactured in the U.S. and sewn together in Canada to create
the completed garment. Although we have insufficient
information to determine definitively whether the suit is
entitled to HTSUS subheading 9802.00.80 treatment, if the U.S.-
made components are merely subjected to assembly operations and
operations incidental to assembly in Canada, then allowances in
duty may be under this tariff provision for the cost or value of
the U.S.- made components. Eligibility for this partial duty
exemption presumes compliance with the documentation requirements
of 19 CFR 10.24. For your information, we have enclosed a
booklet relating to subheading 9802.00.80, HTSUS.
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 purpose of the marking statute is outlined in United
States v. Friedlander & Co., 27 CCPA 297 at 302, C.A.D. 104
I1940), where the court stated that: "Congress intended that the
ultimate purchaser should be able to know by an inspection of the
marking of 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 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."
In a telephone conversation with this office on February 21,
1991, you stated that the Disposable Protection Kit will be
packaged and imported in a shrink wrapped cardboard box. A
sample of the box is printed as previously noted in the facts;
you add that a sticker will be affixed to the bottom of the box
at the Canadian border which indicates both the Canadian and
American addresses of IC Systems. We note that the present
sample has IC Systems' Canadian address printed on the bottom of
the box.
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Since the present merchandise will be imported in a boxed
kit sealed by shrink wrapping, the ultimate purchaser is unable
to determine the country of origin of the individual articles
contained in the kit. Therefore, marking of the container to
indicate the origin of each of the component articles (e.g.
gloves - Malaysia) is necessary to satisfy the requirements of
Section 304 of the Tariff Act of 1930, as amended (19 U.S.C.
1304). If the box refers to a place name other than the country
of origin, the requirements of 19 CFR 134.46 apply. In such
case, the name of the country of origin must appear in close
proximity to and in comparable size letters as the place name.
HOLDING:
The Disposable Protection Kit is a set, and as such is
classified in accordance with GRI 3(c) under subheading
6210.10.4010, HTSUSA, which provides for garments, made up of
fabrics of heading 5602, 5603, 5903, 5906 or 5907: of fabrics of
heading 5602 or 5603: other, nonwoven disposable apparel designed
for use in hospitals, clinics, laboratories or contaminated
areas, dutiable at a rate of 17 percent ad valorem.
On the basis of the information and samples provided, it is
our opinion that a duty exemption may be claimed under HTSUS
subheading 9801.00.10 for the cost or value of the U.S.-made
Tecnol masks incorporated into the Disposable Protection Kit
when the packaged kit is returned to the U.S., pending compliance
with the documentary requirements of 19 C.F.R. 10.1. Allowance
in duty also may be made under subheading 9802.00.80, HTSUS, for
the cost or value of the U.S.-made components that are merely
assembled in Canada to create the Tyvek suit, assuming the
documentation requirements of 19 CFR 10.24 are met.
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 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 Customs
Regulations 19 CFR 177.9 (b)(1), which states that a ruling
letter is issued on the assumption that all information
furnished in connection with the ruling request and incorporated
therein, either directly, by reference, or by implication, is
accurate and complete in every material respect. Should it be
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subsequently 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 that
there is a change in the facts previously furnished, the country
of origin determination may be affected. In such case, it is
recommended that a new ruling request be submitted in accordance
with section 177.2, Customs Regulations (19 CFR 177.2).
Sincerely,
John Durant, Director
Commercial Rulings Division
Enclosure
6cc A.D.,N.Y. Seaport
2cc CIE
julie library/peh