CLA-2 CO:R:C:G JS 086700
TARIFF NO: 6210.10.2000
Shelton Townley
Rogers & Brown Custom Brokers, Inc.
P.O. Box 937
Greer, South Carolina 29652
RE: Surgical Pack
Dear Ms. Townley:
This is in reference to your letter of February 28, 1990,
and January 26, 1990, on behalf of Mars White Knight, requesting
classification of a surgical pack under the Harmonized Tariff
Schedule of the United States Annotated (HTSUSA), to be imported
from Mexico. The sample you provided will be returned under
separate cover.
FACTS:
The merchandise at issue is called Lap Ultrapack 14-8824 and
is comprised of sixteen items as follows:
1 large Sontara scrub nurse gown (in over wrap)
2 large Sontara sterile back gowns
3 hand towels
2 absorbent towels
4 utility drapes with tape
1 wing laparotomy sheet with tape
1 suture bag
1 table cover
1 mayo stand cover
These items are intended for one-time use in a surgical
procedure known as a "laparotomy". The Sontara gowns are made of
a material which is composed of a polyester fiber batt and a wood
pulp paper which are hydraulically combined by a patented water
jet process. Our telephone conversation of May 8, 1990,
confirmed that all of the items, with the exception of the
Sontara gowns and the laparotomy sheet, are shipped in completed
form from the United States to Mexico where they are packaged for
retail sale. The Sontara items and laparotomy sheet, however,
are shipped to Mexico as cut fabricated components, which are
then sewn together and packaged with the other items stated
above. The completed surgical pack is then subjected to a
sterilization process in the United States.
Whereas Haiti was mentioned as a country of importation in a
letter by the importer dated January 15, 1990, only Mexico will
be considered for Chapter 98 treatment pursuant to the
information provided in your subsequent letters and the telephone
conversation referenced above.
ISSUE:
1) Is the Lap Ultrapack 14-8824 "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; if not a set, how are the items properly
classified?
3) Are such products eligible for duty free treatment under
the Generalized System of Preferences ("GSP"), or, in
the alternative, for a duty exemption under subheading
9801.00.10 and/or 9802.00.80, HTSUSA?
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 surgical pack at issue consists of, at least,
both paper and plastic 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;
(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 laparotomy pack consists of at least two different
articles which are classifiable in different headings. The set
contains articles which are intended for use during a specific
surgical procedure. And, although these packs as imported are
not "suitable for sale directly to users" due to the fact that
they must first be sterilized, sterilization of goods while still
in the packages is not considered "constructive unpacking and
repacking" so as to disqualify this merchandise as a set. See,
HRL 083137 dated October 31, 1989.
Since the laparotomy pack 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 Lap Ultrapack
14-8824 is not readily apparent. Each component plays a
significant role in the surgical purpose for which the set is
designed. No single item imparts a unique character to the
function of the set as a whole, and, moreover, none of the
factors given above prove determinative in any respect.
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 table
cover and mayo stand cover are made of polyethylene plastic, and
are classified under subheading 3926.90.9050, HTSUSA, which
provides for other articles of plastics and articles of other
materials of headings 3901 to 3914: other, other, other.
The hand towels, absorbent towels, utility drapes with tape,
and the wing laparotomy sheet with tape are made of paper and as
such are classified under subheading 4818.90.0000, 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: other.
The suture bag is classified under subheading 4819.40.0040,
HTSUSA, which provides for cartons, boxes, cases, bags and other
packing containers, of paper, paperboard, cellulose wadding or
webs of cellulose fibers; box files, letter trays and similar
articles, of paper or paperboard of a kind used in offices, shops
or the like: other sacks and bags, including cones, other.
The large scrub nurse gown and sterile back gowns are made
of Sontara, which is classified as a textile fabric. See, HRL
086629 dated May 4, 1990 (Customs laboratory analysis confirms
that the essential character of Sontara is not imparted by the
paper portion of the product; correct classification is under the
provision for woven textile products formed on a base of paper).
Classification is therefore appropriate in subheading 6210.10.
2000, HTSUSA, which provides for garments, made up of fabrics of
heading 5602, 5603, 5903, 5906 or 5907: of fabrics of heading
5602 or 5603: of fabrics formed on a base of paper or covered or
lined with paper.
Applying GRI 3(c), the Lap Ultrapack 14-8824 is classified
under heading 6210, HTSUSA, which appears last in numerical order
among the competing headings which equally merit consideration.
Certain articles from Mexico are eligible for special tariff
treatment under the Generalized System of Preferences (GSP)
pursuant to section 502(a)(3) of the Trade Act of 1974. However,
General Note 3(c)(ii)(C) of the HTSUSA states that:
The symbol "A*" indicates that certain beneficiary
developing countries, specifically enumerated in
subdivision (c)(ii)(D) of this note, are not eligible for
such preferential treatment with regard to any article
provided for in the designated provision.
Subdivision (c)(ii)(D) includes all articles produced in
Mexico which are classified under subheading 6210.10.20, HTSUSA.
Therefore, duty-free treatment of the Lap Ultrapack 14-8824 under
GSP is denied.
In the alternative, HTSUSA subheading 9802.00.80, which
provides a partial duty exemption for the following, is
considered:
[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, lubrication, and painting...
All three requirements of HTSUSA 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 value of the imported assembled article, less the cost or
value of such U.S. components, upon compliance with the
documentary requirements of section 10.24, Customs Regulations
(19 C.F.R. 10.24).
Section 10.16(a), Customs Regulations (19 C.F.R. 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.
The sewing of the pre-cut Sontara fabric into gowns, and the
gluing of the various wing laparotomy sheet parts and tape, are
considered acceptable assembly operations pursuant to 19 C.F.R.
10.16(a). Therefore, the surgical pack at issue is entitled to
an allowance in duty for the cost or value of the U.S. components
incorporated into the two large Sontara gowns and the wing
laparotomy sheet with tape under HTSUSA subheading 9802.00.80
when imported into the U.S. in the Lap Ultrapack 14-8824.
HTSUS subheading 9801.00.10 provides for the free entry of
U.S. 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 the exception of the Sontara gowns and the wing
laparotomy sheet with tape, the operations performed in Mexico
consist merely of repackaging the U.S. products with the
assembled Sontara garments and the wing laparotomy sheet.
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 surgical pack consisting of
U.S. products, excluding the assembled Sontara gowns and wing
laparotomy sheet with tape, will be eligible for the 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.
HOLDING:
The merchandise at issue, Lap Ultrapack 14-8824, is a set,
and as such is classified in accordance with GRI 3(c) under
subheading 6210.10.2000, HTSUSA, which provides for garments,
made up of fabrics of heading 5602, 5603, 5903, 5906 or 5907: of
fabrics of heading 5602 or 5603: of fabrics formed on a base of
paper or covered or lined with paper, dutiable at a rate of 5.6
percent ad valorem.
On the basis of the information and samples provided, it is
our opinion that an allowance in duty may be made under the HTSUS
subheading 9802.00.80 for the cost or value of the U.S.
components incorporated into the large Sontara gowns and wing
laparotomy sheet when the assembled articles are returned to the
U.S., upon compliance with the documentary requirements of 19
C.F.R. 10.24. Moreover, the packaging operations do not advance
in value or improve in condition the other U.S. products.
Therefore, the other U.S. products will qualify for the duty
exemption under HTSUS subheading 9801.00.10, upon compliance with
the documentation requirements of 19 C.F.R. 10.1.
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