CLA 2-RR:NC:TA:350 M86616
Mr. Donald S. Stein
Greenberg Traurig, LLP
800 Connecticut Avenue, NW, Suite 500
Washington, DC 20006
RE: Classification and country of origin determination for disposable non sterile surgical drapes; 19 CFR 102.21(c)(2); tariff shift
Dear Mr. Stein:
This is in reply to your letter dated September 25, 2006, on behalf of Kimberly-Clark Corporation, Neenah, WI, requesting a classification and country of origin (marking) determination for disposable non-sterile surgical drapes which, depending upon construction and or composition, will be imported into the United States under either tariff heading 6307.90.6800 or 6307.90.7200.
While no samples were provided, you provided two different scenarios as follows:
Fabric of U.S. origin will be sent to Mexico for processing (which sometimes will include cutting) into the finished article, which will be a surgical drape classifiable under one of the two tariff headings specified above.
2) Fabric produced in an unspecified country will be sent to still another unspecified country for processing (which sometimes will include cutting) into the finished article, which again, will be a completed surgical drape.
CLASSIFICATION:
The applicable subheading for the disposable non sterile surgical drapes, in one instance, will be 6307.90.6800, Harmonized Tariff Schedule of the United States (HTSUS), which provides for Other made up articles, including dress patterns: Other: Surgical drapes: Other: Spunlaced or bonded fiber fabric disposable surgical drapes of man-made fibers. The general rate of duty will be Free.
The applicable subheading for the other disposable non sterile surgical drape, in the other instance, will be 6307.90.7200, Harmonized Tariff Schedule of the United States (HTSUS), which provides for Other made up articles, including dress patterns: Other: Surgical drapes: Other: Other. The general rate of duty will be 4.5 percent ad valorem.
COUNTRY OF ORIGIN - LAW AND ANALYSIS:
Section 334 of the Uruguay Round Agreements Act (codified at 19 U.S.C. 3592), enacted on December 8, 1994, provided rules of origin for textiles and apparel entered, or withdrawn from warehouse for consumption, on and after July 1, 1996. Section 102.21, Customs Regulations (19 C.F.R. 102.21), published September 5, 1995, in the Federal Register, implements Section 334 (60 FR 46188). Section 334 of the URAA was amended by section 405 of the Trade and Development Act of 2000, enacted on May 18, 2000, and accordingly, section 102.21 was amended (68 Fed. Reg. 8711). Thus, the country of origin of a textile or apparel product shall be determined by the sequential application of the general rules set forth in paragraphs (c)(1) through (5) of Section 102.21.
Paragraph (c)(1) states "The country of origin of a textile or apparel product is the single country, territory, or insular possession in which the good was wholly obtained or produced." As the subject merchandise is not wholly obtained or produced in a single country, territory or insular possession, paragraph (c)(1) of Section 102.21 is inapplicable.
Paragraph (c)(2) states that "Where the country of origin of a textile or apparel product cannot be determined under paragraph (c)(1) of this section, the country of origin of the good is the single country, territory, or insular possession in which each of the foreign materials incorporated in that good underwent an applicable change in tariff classification, and/or met any other requirement, specified for the good in paragraph (e) of this section:"
Paragraph (e) in pertinent part states that "The following rules shall apply for purposes of determining the country of origin of a textile or apparel product under paragraph (c)(2) of this section":
HTSUS Tariff shift and/or other requirements
The country of origin of a good classified under
subheading 6307.90 is the country, territory, or
insular possession in which the fabric comprising the
good was formed by a fabric-making process.
The definition of the term “fabric-making process” can be found in 19CFR102.21 (b)(2). A fabric-making process is any manufacturing operation that begins with polymers, fibers, filaments (including strips), yarns, twine, cordage, rope, or fabric strips and results in a textile fabric.
In your first scenario (#1), the fabric-making process occurs in a single country, that is, the United States, and, as per the terms of the tariff shift requirement, the country of origin is conferred in the United States. Therefore, the country of origin for marking purposes is the United States.
Please note that if a good is determined to be an article of U.S. origin, it is not subject to the country of origin marking requirements of 19 U.S.C. §1304. Accordingly, whether these drapes may be marked with the phrase "Made in the USA-Processed in Mexico", as you suggest, or similar words encompassing U.S. origin, is an issue under the authority of the Federal Trade Commission (FTC). We suggest that you contact the FTC Division of Enforcement, 6th and Pennsylvania Avenue, N.W., Washington, D.C. 20508 on the propriety of your proposed marking which makes mention of two countries.
Please be aware also, that the NAFTA Preference Override set forth in 19 CFR 102.19 is applicable to the subject merchandise. Specifically, 19 CFR 102.19(b) states:
(b) If, under any provision of this part, the country of origin of a
good which is originating ..... is determined to be the United
States and that good has been exported from, and returned to,
the United States after having been advanced in value or
improved in condition in another NAFTA country, the country of
origin of such good for Customs duty purposes is the last NAFTA
country in which that good was advanced in value or improved in
condition.
Your request does not indicate the origin of the polyethylene used to manufacture the non-woven fabric. For the purposes of this ruling, we will assume only non-NAFTA polyethylene resin was used in the production of the non-woven fabric and the entire manufacturing process was done in the United States. Based on these assumptions the disposable drapes will qualify for NAFTA preferential treatment, because they will meet the requirements of HTSUS General Note 12(b)(ii) and 12(t)(63.4).
Based on the above, the non-woven disposable surgical drape has been determined under section 102.21(c)(2) to be a good of U.S. origin for marking purposes. Because the article was returned to the U.S. after having been advanced in value or improved in condition in Mexico by virtue of being cut and formed to shape and assembled by gluing and folding, the country of origin of the drape for Customs duty purposes is Mexico, pursuant to 19 CFR 102.19(b). Accordingly, the “MX” NAFTA rate of duty for subheadings 6307.90.6800 and 6307.90.7200 is Free.
With regard to your inquiry concerning Scenario #2, we will not be able to make a determination without knowing the specific countries involved.
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 section 19 CFR 177.9(b)(1). This section states that a ruling letter, either directly, by reference, or by implication, is accurate and complete in every material respect.
This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177). Should it be 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 there is a change in the facts previously furnished, this may affect the determination of country of origin. Accordingly, if there is any change in the facts submitted to Customs, it is recommended that a new ruling request be submitted in accordance with 19 CFR 177.2.
A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Deborah Walsh at 646-733-3044.
Sincerely,
Robert B. Swierupski
Director,
National Commodity
Specialist Division