CLA-2 CO:R:C:S 557403 WAS

District Director
U.S. Customs Service
880 Front Street
Room 5-S-9
San Diego, CA 92188

RE: Request for Internal Advice 26/93 on the eligibility of three medical appliances from Mexico for duty-free treatment under the GSP; double substantial transformation

Dear Sir:

This is in response to your letter dated March 15, 1993, forwarding a request for Internal Advice from Sherwood Medical regarding the eligibility of a urine meter, NS EZ cap set and silicon foley catheter from Mexico for duty-free treatment under the Generalized System of Preferences (GSP) (19 U.S.C. 24612466). Samples of the merchandise were submitted to our office for our review.

FACTS:

The urine meter is a graduated urinary drainage bag which includes attachments such as plastic tubing, a catheter adapter and a valve. It is used to collect and measure the amount of urine drained from a patient. The urine meter is produced in Mexico as follows:

1. The meter front, spacer and back are made from purchased rigid polyvinyl chloride (PVC) sheeting of U.S. origin in a thermoforming machine; the back piece is die punched and the front piece is hot stamped with the fluid graduations.

2. Purchased vinyl sheeting of U.S. origin (clear and white) is cut, and the clear vinyl is printed by silkscreen, and placed on a conveyor to pass through an ultraviolet light to dry it.

3.A purchased clear PVC tube is cut in diagonal lengths to form a drip chamber. Another tube is die punched through the body to form the burette tube.

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4. All of the components mentioned above, in addition to a purchased plastic hanger and a filter with its retainer are "R.F. welded" in four phases, to form a vinyl bag with a rigid meter over the front face.

5. Once the bag is assembled, a twist valve is assembled with solvent to a bushing and then to the meter using the same solvent.

6. At another workstation, two purchased plastic shells are manually assembled to a ring, creating the drain valve. A purchased latex is assembled to the bag and then the drain valve to the latex tube.

7. The assembled bag is leak tested by introducing air with a hose and submerging the bag into water, to check for bubbles.

8. The inlet line is heated and stretched onto one end, and a vented connector, a PVC bushing, and a latex tube are assembled to the other end of the tube with solvent. Then the stretched end of tube is assembled with solvent to the inlet tube of the assembled bag. Next, the line is coiled and secured with a self stick paperband. A punched bedsheet clip with a rubber band is attached to the inlet line.

9. A purchased protector is assembled to the vented connector of the urine meter bag.

10. A packaging machine thermoforms trays from purchased film. The urine meter bag is placed into these trays. The machine prints the tyvek cover and then seals it to the clear tray with the meter bag inside.

11. The individual package is labeled with the lot number and 10 units are packed into a shipper carton and identified with a label located on one corner of the shipper. Shippers are then palletized, sent to the sterilizer and distributed according to the schedule requirements.

The importer states that the assembly of the urine meter into the finished article involves over 20 different steps.

The second article is described as a silicon foley catheter. This article is a molded silicon catheter with an integrated balloon. It is used to access the bladder through the urethra. The rubber balloon is blown up after insertion to help keep the catheter in place. The silicon foley catheter is produced in Mexico as follows:

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An uncatalyzed silicone rubber, catalyst, and pigment of U.S. origin are purchased and are brought into the plant where they are mixed together at specific ratios to produce compounds for either molding or extrusion.

These compounds are then either extruded to produce the shaft of the catheter or molded to form the balloon of the catheter.

The compounds are vulcanized (cured) by passing them through a high temperature furnace (HAV) in the case of the extrusion, or having a high temperature on the molds in the case of the balloon.

The extruded shaft and the molded balloon are further vulcanized by placing them in a circulating hot air oven where they are processed at specific temperatures and times.

The shaft is then punched to form the drainage eyes, and notched to form the balloon inflation notch.

The inflation lumen (small lumen) of the shaft is then plugged at the punched end with room temperature curing adhesive (RTV) to prevent air leakage after final manufacturing has been completed.

The completed shaft is then placed in a mold where the funnel and tip are formed by injecting pigmented liquid silicone rubber into the mold cavities which are at a high temperature and are vulcanized to the shaft.

The assembly is then tested for functional integrity. Acceptable assemblies are then placed in a fixture where the previously molded and trimmed balloons are assembled in place on the shaft.

The assemblies are then placed in a fixture where a room temperature vulcanizing adhesive is injected around both ends of the balloon.

The adhesive is then blended down to form a smooth transition to the shaft.

The assemblies are then removed from the fixture and hung up on racks to cure at room temperature.

Purchased plastic valve retainer sleeves are hot stamped with variable information in a machine designed for this purpose.

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13. The printed retainers and purchased valves are assembled to the catheter assembly, inflated with air, and examined for leakage and/or non-inflation.

14. The final assembled catheters are then inflated and placed in a water bath at a controlled temperature and inspected for functionality.

15. The acceptable catheters are then cleaned and placed in a packaging machine which assembles a poly sleeve around the catheter.

16. The poly bagged catheters are then placed in another packaging machine where the final poly/tyvek packaging of the unit is completed.

17. The catheters are then sent to a sterilization facility. After sterilization, the product is shipped to the various distribution centers in the U.S.

The importer states that the assembly of the silicon foley catheter involves over 30 assembly steps.

The third article is described as a "NS EZ cap set." It is a bag with easy cap closure and ice pouch which is used for dispensing a special nutritional formula directly into the gastrointestinal track. The article is produced as follows:

1. The lower PVC feeding tube is fed through a machine where it is cut to length, coiled and taped, transferred down an assembly line where the purchased components are assembled (dust cover, red connector, silicone pump tube, ring magnet, plastic connector) using solvent to bond the red connector and the plastic connector to the PVC tube.

2. The upper PVC feeding tube is fed into an automatic assembly machine where the tube is cut to length, the pre-assembled drip chamber and bushing are solvent bonded to the PVC tube, and the clamp body and roller are assembled.

3. In Mexico, three sheets of vinyl are fed through an RF welding machine to form the perimeter welds of the feeding bag.

4. The welded bag is then placed in a silkscreen machine, where the fluid graduations are silkscreened onto the bags. The bags are then fed through an ultraviolet curing process to dry the ink.

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Bags are then placed in a fixture on a RF welding machine where the purchased PVC closure cap is welded to the top end of the bag.

The bag assemblies are then placed on an air test conveyor and inspected for non-leakage.

The acceptable bags are then placed in an assembly/packaging line where the pre-assembled upper and lower feeding tubes are assembled to the bag with a solvent. These assemblies are then folded up with the coiled feeding tube and placed into a pre-printed polybag along with a purchased patient label.

The polybagged unit is then placed in a sealer where the seal is completed and the lot number hot stamped onto the polybag.

The sealed polybagged units are then placed in a carton and a label is affixed onto the end of the carton.

The cartons are then placed on pallets where they are shipped to the various distribution centers in the U.S.

importer states that the production of the NS EZ cap set over 20 different assembly steps.

ISSUE:

Whether the urine meter, NS EZ cap set and silicon foley catheter are eligible for duty-free treatment under the GSP.

LAW AND ANALYSIS:

Under the GSP, eligible products, the growth, product or manufacture of a designated beneficiary developing country (BDC) which are imported directly into the U.S. qualify for duty-free treatment if the sum of (1) the cost or value of the material produced in a BDC, plus (2) the direct costs involved in processing the eligible article in the BDC, is not less than 35% of the appraised value of the article at the time it is entered into the U.S. See section 10.176(a), Customs Regulations (19 CFR 10.176(a)).

As stated in General Note 3(c)(ii)(A), Harmonized Tariff Schedule of the United States (HTSUS), Mexico is a designated BDC. In addition, it appears from your description of the merchandise that the products at issue are classified under subheadings 9018.90.80, HTSUS, which provides for "[i]nstruments and appliances used in medical, surgical, dental or veterinary sciences,. Other instruments and appliances and parts and accessories thereof: Other," and 9018.39.00, HTSUS, which

provides for "[i]nstruments and appliances used in medical, surgical, dental or veterinary sciences,. Syringes, needles, catheters, Other." These subheadings are GSP-eligible provisions and, therefore, the three medical devices will qualify for duty-free treatment provided they are "imported directly" from Mexico to the U.S., are a "product of" Mexico and the 35% value-content requirement is satisfied.

If an article is produced or assembled from materials which are imported into the BDC, as in the instant case, the cost or value of those materials may be counted toward the 35% value- content requirement only if they undergo a double substantial transformation in the BDC. See section 10.177, Customs Regulations (19 CFR 10.177), and Azteca Milling Co. v. United States, 703 F. Supp. 949 (CIT 1988), all'd, 890 F.2d 1150 (Fed. Cir. 1989). This means that the cost or value of the imported plastic and rubber silicone imported into Mexico and used to produce the three medical devices may be included in the GSP 35% value-content requirement only if the plastic and rubber silicone are first substantially transformed into new and different articles of commerce, which are themselves substantially transformed when assembled into the final article.

The test for determining whether a substantial transformation has occurred is whether an article emerges from a process with a new name, character or use, different from that possessed by the article prior to processing. See Texas Instruments Inc. v. United States, 69 CCPA 152,681 F.2d 778 (1982).

Customs has held under certain circumstances that the cutting of fabric into specific patterns and shapes suitable for use in the assembly of a completed article is sufficient to substantially transform the fabric. See Headquarters Ruling Letter (HRL) 731028 dated July 18, 1988 (cutting of fabric into garment parts for wearing apparel constitutes a substantial transformation), and HRL 555693 dated April 15, 1991 (cutting of fabric to create pattern pieces for an infant carrier results in a substantial transformation).

In this case, based on the information provided, we find that the die cutting of plastic sheets for drainage and feeding bag components in Mexico is analogous to the cutting of garment parts for wearing apparel and the cutting of pattern pieces for an infant carrier. In the instant case, the plastic is cut into various shapes and sizes suitable for use as drainage or feeding bag components which, when assembled with other components, create the finished article. Accordingly, we find that the cutting to shape of the imported plastic in roll form creates new and different articles.

Furthermore, with regard to extruding and molding the rubber silicone in Mexico, Customs has consistently held that molding of plastic into a specific shape which is then used in the production of an eligible article is considered a substantial transformation. See e.g., HRL 055611 dated October 13, 1978 (injection molding of plastic pellets to form parts of toy pistols constitutes a substantial transformation); HRL 556646 dated August 6, 1992 (injection molding of plastic pellets to form front piece and two temple pieces of eyeglass frames constitutes a substantial transformation). Therefore, the process of extruding the rubber silicone to form the various components of a silicone foley catheter (i.e., shaft, balloon), constitutes a substantial transformation of the imported rubber silicone.

The importer must also demonstrate that the "new and different" intermediate product is recognized as a separate article of commerce. An article of commerce is one that is "readily susceptible of trade, and [is] an item that persons might well wish to buy and acquire for their own purposes of consumption or production." Torrington Co. v. United States, 764 F.2d 1563, 3 CAFC 158 (Fed. Cir. 1985). Moreover, an article of commerce is one that is ready to be put into the stream of commerce, but need not previously have been actually bought-andsold or traded. However, "the lack of purchases and sales is nevertheless a factor to be considered in determining whether a product or merchandise is an article of commerce." Azteca at 1160.

The court in Torrington found that swage needles were a separate article of commerce because two large transfers of the needles had occurred between plaintiff and a subsidiary. In Azteca, however, the court held that the intermediate products were not separate articles of commerce. The court concluded that the intermediate products were not readily marketable since they were only "materials in process, advancing toward the finished product." AZteca at 1160.

In the present case, the importer has not provided any evidence to show that the individual drainage and feeding bag components used in the production of the finished bags were articles of commerce. The importer provided evidence that there is a market for the completed bags. We have not received any information regarding either sales of the drainage and feeding bag components at issue in this case or sales of the functional equivalent of the bag components. Nor did the importer show that the bag components were "readily susceptible of trade," or possessed any potential for commercial sales. Torrington at 1570. Therefore, based on the information presented, we must conclude that the importer has failed to show that the drainage and feeding bag components used in the production of the bags for

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the urine meter and NS EZ cap set were substantially transformed into new and different articles of commerce.

However, the importer has provided evidence of sales of the extruded rubber silicone tube in the form of an invoice. We have previously stated that extruding the rubber silicone material into the shape of a balloon or shaft for use in the silicone foley catheter results in a substantial transformation of the imported material. We also believe that extruding the rubber silicone results in the creation of an intermediate article which is recognized as a separate and distinct article of commerce.

The next issue to be addressed is whether the assembly of the substantially transformed rubber catheter shaft and balloon with other components results in a second substantial transformation of the U.S.-origin rubber silicone material, so that the cost or value of this material may be counted toward the 35% value-content requirement for purposes of the GSP.

We have consistently held that, for purposes of the GSP, an assembly process will not work a substantial transformation unless the operation is "complex and meaningful." See C.S.D. 8525, 19 Cust. Bull. 544 (1985). Whether an operation is complex and meaningful depends on the nature of the operation. In making this determination, we consider the time, cost, and skill involved, the number of components assembled, the number of different operations, attention to detail and quality control, as well as the benefit accruing to the beneficiary developing country (BDC) as a result of the employment opportunities generated by the manufacturing process.

In determining whether the combining operation performed in Mexico constitutes a substantial transformation, section 10.195(a), Customs Regulations (19 CFR 10.195(a)), also is relevant. According to 19 CFR 10.195(a), which implements the Caribbean Basin Economic Recovery Act (CBERA), no article shall be considered to have been produced in a CBERA beneficiary country by virtue of having merely undergone simple, as opposed to complex or meaningful, combining or packaging operations. However, 19 CFR 10.195(a)(2)(ii)(D) provides that this exclusion shall not be taken to include:

A simple combining or packaging operation or mere dilution coupled with any other type of processing such as testing or fabrication (e.g., a simple assembly of a small number of components, one of which was fabricated in the beneficiary country where the assembly took place.) (Emphasis added)

This regulation is instructive here inasmuch as the CBERA and GSP programs have similar statutory aims, and the country of origin criteria of the statutes are nearly identical.

We are of the opinion that the rubber silicone imported into Mexico and used in the production of the silicone foley catheter may be counted toward the 35% value-content requirement under the GSP. Based on invoices submitted by the importer showing actual sales of the extruded rubber components, we believe that these articles constitute "new and different articles of commerce" from the rubber silicone from which they are made. See Azteca Milling at 1160. In view of the fact that the catheter shaft and balloon in the silicone foley catheter are fabricated in Mexico from the rubber silicone, we believe that the operations described above to produce the finished silicone foley catheter constitute more than a simple combining operation as set forth in 19 CFR 10.195(a). We find that the assembly of the catheter balloon and shaft with other materials in Mexico to create the finished article results in new and different articles and constitutes a second substantial transformation of the rubber silicone material imported into Mexico.

We are also of the opinion that with the exception of the rubber silicon, the various other U.S. components (i.e., tubes, connectors, valves, etc.), which are sent to Mexico as already completed components for assembly with the drainage and feeding bag and catheter shaft and balloon in the production of the finished articles do not undergo a double substantial transformation. The importer has not shown that these components are first substantially transformed into a new and different intermediate article of commerce which is itself substantially transformed into a new and different article.

In regard to the 35% value-content requirement, the importer claims that more than 35% of the appraised value of the articles is attributable to materials produced in Mexico plus the direct costs of processing operations incurred in Mexico. We are of the opinion that the entire cost of any Mexican-origin raw materials used in the production of the drainage bag may be included in the value-content calculation as they are considered "materials produced" in a BDC or countries. See section 10.176(c), Customs Regulations (19 CFR 10.176(c)). The cost or value of the U.S.- origin PVC material which is used in the production of the drainage and feeding bags for the urine meter and NS EZ cap set may not be counted toward the 35% calculation, as the PVC has not undergone the requisite double substantial transformation in Mexico. However, the U.S.-origin rubber silicone material used in the production of the shaft and balloon for the silicone foley catheter may be counted toward the 35% calculation, as the rubber silicone has undergone a double substantial transformation. In addition, for all three of the medical devices, the direct costs of processing incurred in Mexico to produce the final articles may be applied toward the 35% value-content requirement. See section 10.178(a), Customs Regulations (19 CFR 10.178(a)), for those items includable in the direct costs of processing operations. Therefore, as the "product of" requirement has been

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satisfied for each of the three medical devices, provided that they satisfy the 35% value-content requirement by the means prescribed above, the merchandise is entitled to duty-free treatment under the GSP.

Based on the information provided, it is our opinion that the rubber silicone imported into Mexico will undergo the requisite double substantial transformation when manufactured into parts of the silicone foley catheter. Therefore, the cost or value of the U.S.-origin rubber silicone may be counted toward the 35% value-content requirement for purposes of the GSP. However, the U.S.-origin PVC material has undergone a single substantial transformation in Mexico, and therefore, the cost or value of the PVC may not be included in the 35% value-content requirement for purposes of the GSP. Accordingly the urine meter, NS EZ cap set and silicone foley catheter is entitled to duty-free treatment under the GSP, provided the 35% value-content requirement is met.

Sincerely,

John Durant, Director
Commercial Rulings Division