CLA-2 CO:R:C:T 953990 SK
District Director
U.S. Customs Service
U.S. Customhouse 1 East Bay St.
Savannah, GA 31401
RE: Decision on Application for Further Review of Protest No.
1704-93-100076; granted; classification of adhesive-backed nylon
knit fabric used for attaching breast protheses proper under
subheading 9802.00.80, HTSUSA.
Dear Sir:
This is a decision on application for further review of a
protest timely filed on behalf of Amoena Corporation, on February
10, 1993, against your decision regarding the classification of
adhesive-backed nylon knit fabric used for attaching breast
protheses. The subject merchandise entered the United States at
the port of Savannah, Georgia in six different entries dating
from April 27, 1992 through September 23, 1992. All entries were
liquidated on November 13, 1992.
FACTS:
Rolls of U.S.-manufactured fabric coated with a sprayed-on
medical grade adhesive are sent to Denmark where the fabric is
laminated with hydrocolloid, a water-absorbing medical grade
adhesive. The hydrocolloid side is then covered with a
siliconized release paper. The product that is then returned to
the U.S. is referred to as "skin support material." These skin
supports are attached to the chest wall of mastectomy patients so
that an external breast prosthesis can be attached. Attachment
is accomplished by affixing a velcro-like hook material to the
back of the prothesis, which in turn fastens to the fabric.
Several samples were submitted to this office for
examination, although none represents the merchandise in its
imported condition. The imported merchandise consists of rolls
of nylon knitted looped pile fabric, laminated to a sheet of
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hydrocolloid material, with a release paper backing. After
importation into the U.S., the fabric is die cut into "J"-shaped
pieces. The samples submitted to this office are in "J"-shaped
pieces.
The importer claims that the merchandise should be
classified under either:
* heading 3005, HTSUSA, as adhesive dressings or wadding coated
or impregnated with pharmaceutical substances;
* heading 3919, HTSUSA, as coated fabric;
* heading 6002, HTSUSA, as other non-pile knit fabric; or
* subheading 9802.00.50, HTSUSA, as repaired/altered material.
ISSUE:
What is the proper classification of the subject
merchandise?
LAW AND ANALYSIS:
Classification of merchandise under the Harmonized
Tariff Schedule of the United States Annotated (HTSUSA) is in
accordance with the General Rules of Interpretation (GRI's),
taken in order. GRI 1 provides that classification shall be
determined according to the terms of the headings and any
relative section or chapter notes.
The importer claims that the merchandise at issue is
classifiable under heading 3005, HTSUSA, as either adhesive
dressings or wadding coated or impregnated with pharmaceutical
substances. The subject merchandise does not serve as a
protective or supportive covering for diseased or injured tissue,
therefore it is not classifiable as a dressing. The subject
fabric also does not serve as a bandage in that it is not a piece
of gauze or other material applied to the body so as to hold a
dressing in place, immobilize a part, obliterate cavities, lend
support to an injured area or check bleeding.
Heading 3919, HTSUSA, provides for "self-adhesive plates,
sheets, film, foil, tape, strip and other flat shapes, of
plastics, whether or not in rolls." The General Notes to Chapter
39, at page 554, under the paragraph headed "[P]lastics and
textile combinations," state in section (b) that textile fabrics
and nonwovens are provided for in Chapter 39 "if they are either
completely embedded in plastics or entirely coated or covered on
both sides with such material." The lamination on the subject
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merchandise is only on one side and completely exposes the pile
side of the textile fabric. The textile in no way can be
considered "embedded" in the plastic laminate. Accordingly,
classification is not proper under heading 3919, HTSUSA.
Protestant proposes that heading 6002, HTSUSA, provides for
the fabric at issue. This heading provides for other knitted or
crocheted non-pile fabric. Examination of the subject fabric
reveals that it has been knitted in such a manner so that the
textile yarns inserted during the knitting process form
protruding loops. Protruding loops are deemed to constitute a
pile fabric and therefore classification is not proper within
heading 6002, HTSUSA. Heading 6001, HTSUSA, provides for "pile
fabrics... knitted or crocheted." As the base fabric is knitted
and it is a pile fabric, classification of the base fabric is
proper under this heading.
Heading 5903, HTSUSA, provides for "textile fabrics
impregnated, coated, covered or laminated with plastics, other
than those of heading 5902, HTSUSA." Chapter Note 1 to Chapter
59 states that "for the purposes of this Chapter the expression
'textile fabrics' applies only to the ... knitted or crocheted
fabrics of heading No, 6002." As set forth supra, the base
fabric of the subject merchandise is classifiable as a knit pile
fabric under heading 6001, HTSUSA. Therefore, as mandated by
Chapter Note 1, classification of this fabric is not proper
within Chapter 59, HTSUSA.
Lastly, you claim that classification is proper under
subheading 9802.00.50, HTSUSA, which provides for articles
exported for repair or alterations. The processing operations
that are performed in Denmark (i.e., lamination, affixation of
release paper) are substantially more than mere alteration.
Also, in no way can the operations performed in Denmark be
considered to be repairs. Classification is not proper under
this subheading.
You did not assert classification under subheading
9802.00.80, HTSUSA. This subheading 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.
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All three requirements of subheading 9802.00.80, HTSUSA, must be
satisfied before a component may receive a duty allowance. An
article entered under subheading 9802.00.80, HTSUSA, is subject
to duty upon the full value of the imported assembled article
less the cost or value of the U.S. components, 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, in part, that:
The assembly operations 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, and may be
preceded, accompanied, or followed by operations incidental
to the assembly as illustrated in paragraph (b) of this
section. [emphasis added]
In C.J. Tower & Sons of Buffalo, Inc. v. United States, 62
Cust. Ct. 643, C.D. 3840, 304 F. Supp. 1187 (1969), plastic film
composed of two plastic sheets -- one Canadian polyethylene, the
other U.S. polyester mylar -- was produced in Canada by an
extrusion process in which the foreign polyethylene, in molten
form, was joined with the U.S. mylar sheets through the use of an
adhesive or adhesive promotor. After the resultant product
cooled into a solid, the plastic film was trimmed a quarter of an
inch. The court found that the processing was nothing more or
less than a combination of manufacturing (the foreign material)
and assembling operations, that there was no intermixing of the
sheets in the involved process, that the adhesive or adhesion
promoter did not produce a change in the mylar's physical
identity, form or shape, and that the process was a controlled
operation which anticipated the transformation of the foreign
liquid into a solid before completion of the process, and
provided in advance for the adhesion of two solids together in
the final product. The court concluded that the foreign
operation involved the assembly of two solids and that the U.S.
mylar component was entitled to the duty exemption under TSUS
item 807.00 (the precursor to subheading 9802.00.80, HTSUS). The
facts in the present case are substantially similar to the facts
before the court in C.J. Tower.
Consistent with C.J. Tower and section 10.16(a), Customs
Regulations (19 CFR 10.16(a)), we are of the opinion that the
foreign operations which result in securely joining the coated
fabric material to the siliconized release paper by means of an
adhesive are considered acceptable assembly operations. In the
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instant case, the U.S. fabric has been exported in condition
ready for assembly without further fabrication. The fabric has
not lost its identity by change in shape, form or otherwise, and
has not been advanced in value or improved in condition in
Denmark except by being assembled. Therefore, a partial duty
allowance under subheading 9802.00.80, HTSUSA, may be allowed for
the cost or value of the U.S.-origin fabric assembled into the
"skin support material," when returned to the U.S., upon
compliance with the documentation requirements of 19 CFR 10.24.
HOLDING:
The subject merchandise is classifiable under subheading
6001.22.0000, HTSUSA, which provides for "pile fabrics ...
knitted or crocheted: looped pile fabrics: of man-made fibers"
dutiable at a rate of 19.5 percent ad valorem. The applicable
textile quota category is 224.
The subject article is also eligible for classification
under subheading 9802.00.80, HTSUSA, which 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, with
allowances in duty for the cost or value of the U.S. components
incorporated therein upon compliance with the documentary
requirements of 19 CFR 10.24."
As the subject merchandise was properly classified by
Customs at entry, you are instructed to deny the protest in full.
A copy of this decision should be furnished to the protestant
with the Form 19 notice of action.
Sincerely,
John Durant, Director
Commercial Rulings Division