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NY K87862





August 5, 2004

CLA-2-63:RR:NC:N3:351 K87862

CATEGORY: CLASSIFICATION

Ms. Suzanne Ellers
Coloplast Corp.
1955 West Oak Circle
Marietta, GA 30062-2249

RE: Classification and country of origin determination for mastectomy pads; 19 CFR 102.21(c)(2); tariff shift

Dear Ms. Ellers:

This is in reply to your letter dated June 25, 2004, received in our office July 15, requesting a classification and country of origin determination for mastectomy pads, known commercially as Puffs, which will be imported into the United States.

FACTS:

The subject merchandise consists of a breast-shaped pad measuring approximately 6” wide x 5” high. The front is a thin layer of foam laminated on both sides to knit fabric. The back is a brushed knit fabric of 95% cotton and 5% spandex. The pad is stuffed with polyester fiberfil that is inserted through an opening on the back panel. The pad is used as a temporary prosthesis after mastectomy or lumpectomy surgery.

The manufacturing operations for the mastectomy pads are as follows: the laminated foam fabric, the spandex knit fabric, and the fiberfil are made in the United States and shipped to Costa Rica where the pad is manufactured.

ISSUE:

What are the classification and country of origin of the subject merchandise?

CLASSIFICATION:

The applicable subheading for this product will be 6307.90.9889, Harmonized Tariff Schedule of the United States (HTS), which provides for other made up textile articles, other. The general rate of duty will be seven percent ad valorem.

Please note that the cost or value of the fabric and fiberfil that you supply may be considered a dutiable assist under Section 402 of the Tariff Act (TA). The term “assist” is defined as that which is supplied directly or indirectly by the buyer of imported merchandise, free of charge or at reduced cost, for use in connection with the sale of the merchandise for export to the U.S., under 19 U.S.C. 1401a(h)(1)(A). There are four categories of assists, but only the first, encompassing “materials, components, parts and similar items incorporated in the imported merchandise,” is potentially relevant to the instant situation. As an assist, the value of the fabric and fiberfil would have to be added to the processing costs of the pads before the ad valorem rate of duty is applied, pursuant to Section 402, TA. Additionally, please note that the value of any assist will include transportation costs to the place of production. See Section 152.103(d), Customs Regulations (19 C.F.R. §152.103(d)).

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 that “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

6307.90 The country of origin of a good classifiable 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.

As the fabric was formed in a single country, that is, the United States, as per the terms of the tariff shift requirement, country of origin for marking purposes is conferred in the United States.

However, there is an exception for textile products from the United States that are sent abroad for processing. Section 12.130(c), Customs Regulations, provides that any product of the United States that is returned after having been advanced in value or improved in condition abroad, or assembled abroad, shall be a foreign article.

Section 12.130, which remains in effect, was originally intended to be used to determine the country of origin of textiles and textile products for quota/visa requirements. In T.D. 90-17, issued February 23, 1990, Customs announced a change in practice and position. This change resulted in Customs using Section 12.130 for quota, duty, and marking purposes when making country of origin determinations for textile goods. In accordance with T.D. 90-17 and Section 12.130(c), the country of origin of the mastectomy pad made from U.S. formed fabric is Costa Rica, for quota, marking, and duty purposes. However, this position has recently been modified. On July 11, 2000, Customs published T.D. 00-44 in the Federal Register (65 FR 42634), stating that effective October 10, 2000, Customs will no longer apply 19 CFR 12.130(c) for purposes of country of origin marking. Therefore, in accordance with T.D. 00-44, Section 12.130(c) and Section 102.21(c)(2), for marking purposes, the country of origin of the mastectomy pad will be the United States. Section 12.130(c) remains in effect for duty and quota purposes and the mastectomy pad is subject to the general rate of duty noted previously, as well as the information concerning GSP.

Articles classifiable under subheading 6307.90.9889, HTS, which are products of Costa Rica are currently entitled to duty-free treatment under the Generalized System of Preferences (GSP) upon compliance with all applicable regulations. The GSP, however, is subject to modification and periodic suspension, which may affect the status of your transaction at the time of entry for consumption or withdrawal from warehouse. To obtain current information on GSP, check our Web site at www.cbp.gov and search for the term “GSP.”

HOLDING:

For duty and quota purposes, the country of origin is Costa Rica. For marking purposes, the country of origin of the mastectomy pad is the United States. Please note that separate Federal Trade Commission marking requirements exist regarding country of origin, fiber content, and other information that must appear on many textile items. You should contact the Federal Trade Commission, Division of Enforcement, 6th and Pennsylvania Avenue, N.W., Washington, D.C., 20580, for information on the applicability of these requirements to this item.

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 Mitchel Bayer at 646-733-3102.

Sincerely,

Robert B. Swierupski
Director,

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