HQ 0088173 - Disposable Protection Kit; Classifiable Subheading 6210.10.4010 - United States International Trade Commision Rulings

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HQ 088173
March 26, 1991

CLA-2 CO:R:C:T 088173 JS

CATEGORY: CLASSIFICATION

TARIFF NO.: 6210.10.4010

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.

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?

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;

(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.

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
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 (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.
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.

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.

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
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

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