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NY I88997




December 10, 2002

MAR-2 RR:NC:2: 238 I88997

CATEGORY: MARKING

Mr. Rodney Ralston
UPS Freight Services
One Trans-Border Drive
P.O. Box 800
Champlain, NY 12919

RE: TARIFF CLASSIFICATION OF AND COUNTRY OF ORIGIN MARKING FOR IMPORTED FIRST-AID KITS; ARTICLE 509

Dear Mr. Ralston:

This is in response to your letter dated November 20, 2002, on behalf of your client, NURA Canada Inc., requesting a ruling on the tariff classification of and country of origin marking requirements for imported first aid kits. Four, marked samples were submitted with your inquiry, and are being returned as requested.

The four submitted samples are identified as follows: 50 Person First Aid Kit - Nylon Bag (Item Code 82-3086); 50 Person First Aid - Plastic Container (Item Code 82-3073); 25 Person First Aid Kit - Nylon Bag (Item Code 82-3085); and 25 Person First Aid Kit - Plastic Container (Item Code 82-3072. Although you also requested a ruling for a fifth product, namely: 10 Person First Aid Kit - Plastic Container (Item Code 82-3071), no sample was submitted. Accordingly, this ruling letter is limited to the four submitted samples.

The 50 Person First Aid Kit - Nylon Bag (Item Code 82-3086) and the 25 Person First Aid Kit - Nylon Bag (Item Code 82-3085) each consist of a red nylon pouch with a zipper closure and a textile handle. The 50 Person Kit also has a textile shoulder-strap. Both kits are sealed in transparent shrink wrap. A paper label, printed in English, shows the quantity, name, and country of origin of each of the components contained in each kit, e.g., “2Oval Eye Pads (China),” “5Gauze Pads 3” x 3” (India).” The label is affixed to the bottom surface of each kit by Scotch™ tape, and is clearly visible and legible thru the shrink wrap. According to the label, the components contained in each kit originate in one of the following countries: Canada, India, USA, China, or the United Kingdom. The words “Assembled in Canada” also appear in the lower left hand corner of the label. You have indicated, during a telephone conversation between you and a member of my staff, on December 4, 2002, that all four kits will be offered for retail sale in the U.S. without being subjected to any additional packing operation(s).

The 50 Person First Aid Kit - Plastic Container (Item Code 82-3073) and the 25 Person First Aid Kit - Plastic Container (Item Code 82-3072 contain the same components, in the same quantities, as their nylon-bag counterparts. However, as indicated in their names, the cases are made of plastic.

You state in your letter that the components of Indian, Chinese, U.S. and English manufacture are imported into Canada, where, along with the components of Canadian manufacture, they are packed inside the nylon pouch or plastic container specified for that particular kit. Upon completion of the packing operation, the appropriate label is affixed to the bottom surface of the pouch or plastic container, and the labeled kit is then sealed in shrink wrap for export to and retail sale in the U.S.

With respect to the tariff classification, the applicable subheading for the subject kits will be 3006.50.0000, Harmonized Tariff Schedule of the United States (HTS), which provides for: “[F]irst-aid boxes and kits.” The general rate of duty will be free. The rate of duty will remain the same in 2003.

The marking statute, section 304, Tariff Act of 1930, as amended (19 U.S.C. 1304), provides that, unless excepted, every article of foreign origin (or its container) imported into the U.S. shall be marked in a conspicuous place as legibly, indelibly and permanently as the nature of the article (or its 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. Part 134, Customs Regulations (19 CFR Part 134) implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304.

The country of origin marking requirements for a "good of a NAFTA country" are also determined in accordance with Annex 311 of the North American Free Trade Agreement ("NAFTA"), as implemented by section 207 of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat 2057) (December 8, 1993) and the appropriate Customs Regulations. The Marking Rules used for determining whether a good is a good of a NAFTA country are contained in Part 102, Customs Regulations. The marking requirements of these goods are set forth in Part 134, Customs Regulations.

Section 134.45(a)(2) of the regulations, provides that "a good of a NAFTA country may be marked with the name of the country of origin in English, French or Spanish. Section 134.1(g) of the regulations, defines a "good of a NAFTA country" as an article for which the country of origin is Canada, Mexico or the United States as determined under the NAFTA Marking Rules.

The rules for determining when, for marking purposes, the country of origin of an imported good is one of the parties to "NAFTA" are set forth in Part 102, Customs Regulations.

Part 102 of the regulations, sets forth the "NAFTA Marking Rules" for purposes of determining whether a good is a good of a NAFTA country for marking purposes. Section 102.11 of the regulations, sets forth the required hierarchy for determining country of origin for marking purposes.

Applying the NAFTA Marking Rules set forth in Part 102 of the regulations to the facts of this case, we find that Section 102.11(d)(1) is the rule that must be applied to the imported goods. Under this rule, the country of origin of the good is the country or countries of origin of each material that merits equal consideration for determining the essential character of the good. All of the components of each kit, foreign and domestic, must be considered. In this case, it is our determination that all of the items comprising each kit (including the nylon pouch and plastic container) merit equal consideration in determining the essential character of each kit. Therefore, the country of origin of the subject product is the country of origin (i.e., India, Canada, the U.S., England and China) of the individual components.

According to 19 U.S.C. Section 1304(a)(3)(D) and 19 C.F.R. Section 134.32(d), an exception from the individual marking requirements is applicable where the marking of the container of an imported article will reasonably indicate the origin of the article. This exception is normally applied in cases where the imported article is imported in a properly marked container and the ultimate purchaser in the U.S. will receive it in its original marked container. Therefore, provided the purchaser at retail receives the kit with the above-described paper label affixed to its bottom surface and sealed in shrink wrap, an exception to the individual marking requirements will be applicable, and the items within the set will not require individual country of origin marking. However, the kits will not be considered to properly marked unless reference is made, on the label affixed to the bottom surface of each kit, to the nylon pouch or plastic container and their country of origin.

Although, pursuant to 19 U.S.C. 1304, the components of U.S. origin are not required to be marked, we have no objection to the labels listing the name and country of origin of the U.S. components, e.g., “3Insect Sting Relief Pads (USA),” “5Alcohol Pads (USA),” with the understanding that this position is limited strictly to the four subject kits. However, whether any reference can be made on the labels to the U.S. components in the kits is an issue under the jurisdiction of the Federal Trade Commission (FTC). You may contact the FTC, Division of Enforcement, 6th & Pennsylvania Avenue, N.W., Washington, DC 20508, telephone number 202-326-2222, on the propriety of any indication that components of the article are made in the U.S. As noted above, the components of Indian, Chinese, U.S., and British origin are exported to a NAFTA country (i.e., Canada), where, along with components of Canadian origin, they are packaged together to form the subject first-aid kits imported into the U.S. In our opinion, the mere act of packaging the various components together to form the complete first-aid kit does not constitute an assembly operation - simple or otherwise. Sections 10.12(b) and 102.1(o) of the Customs Regulations. Rather, we find that merely packaging the components of the kit together constitutes nothing more than “minor processing.” Section 102.1(m)(6) of the Customs Regulations. Furthermore, we note that Section 102.17 of the Customs Regulations (“Non-qualifying operations”) clearly states that “A foreign material shall not be considered to have undergone the applicable change in tariff classification specified in Section 102.20 or Section 102.21 or to have met any other applicable requirements of those sections merely by reason of one or more of the following: “(c) Simple packing, repacking or retail packaging without more than minor processing.” We find, therefore, that the words “Assembled in Canada,” presently appearing on the label, are unacceptable and must be removed.

This ruling is being issued under the provisions of Part 181 of the Customs Regulations (19 CFR Part 181).

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 Harvey Kuperstein at 212-637-7068.

Sincerely,

Robert B. Swierupski

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