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HQ 953990


August 2, 1993

CLA-2 CO:R:C:T 953990 SK

CATEGORY: CLASSIFICATION

TARIFF NO.: 9802.00.80; 6001.22.0000

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
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
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.

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
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

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