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NY L81541

January 25, 2005

CLA-2-90:RR:NC:N1:105 L81541


TARIFF NO.: 9018.90.8000

Ms. Barbara Dawley
Meeks & Sheppard
330 Madison Avenue, 39th FL.
New York, NY 10017

RE: The tariff classification and country of origin marking of wound needled sutures from Mexico

Dear Ms. Dawley:

In your letter dated 12-13-04 and your Fax dated 1-21-05, for Ethicon, Inc., you requested a tariff classification and country of origin ruling. You submitted individual samples of the items that will leave the US, the item as it leaves Mexico, and the packaged final product for retail sale.

Per your 1-21-05 Fax, we understand you to have withdrawn your request for special confidentiality treatment for the information bracketed in your letter.

The final product is the Ethicon Y426H box of three dozen 4-0 (1.5 metric) MONOCRYL (Poliglecaprone 25) suture UNDYED MONOFILAMENT.

The imports to Mexico will be separately packaged, non-sterile, US made, bulk quantities of cut-to-length poliglecaprone 25 suture material, metal needles, and plastic trays in which the needled suture material is wound around its perimeter several times. You claim that, although the three components will be packed in their own cartons, equal numbers of each component will be in every shipment imported into Mexico and that Ethicon will have internal controls in place to ensure that that there will be no intermingling of components from separate shipments and these components.

In Mexico, the cartons of components will be opened and the individual components will be matched together in a “kitting” process to form sets of suture material, needle, and tray. The suture material will be “swagged,” i.e., inserted and fused into the hollow end of the needle (the needles do not have “eyes”). The needled suture will then be wound around onto the very thin, disposable, plastic tray, which keeps the thread from getting tangled until received by the user. The shallow sides of the tray also help keep the needle in place within it. Those will be exported then to the US.

In the US, they will be sterilized and individually packaged in a type of printable foil package. These are about 5x2x.1 inch. Then, as in the sample, these are routinely packaged in boxes of dozens for retail sale. Per various web sites, a typical retail price for the Ethicon Y426 box of three dozen of the individually packed needled sutures costs about $365.

We agree that the applicable subheading for the import into the US will be 9018.90.8000, Harmonized Tariff Schedule of the United States (HTS), which provides for “other” instruments and apparatus used in medical, surgical, dental or veterinary sciences. The general rate of duty will be free. We note, e.g., HRL 965318 AM, 11-7-02, published in the Customs Bulletin of 11-27-02.

Regarding the country of origin, CR 102 clearly applies so we must first determine the classification of the components imported into Mexico.

You believe that the three are classified as an unassembled 9018.90 item. However, we believe that would be contrary to HRL 562821 RFC, 10-30-03. Here, the “matching” numbers of bulk items will not even be shipped in the same carton, just in the same shipment. Besides further reducing the appropriateness of considering them to be unassembled items, this would also result in a quite difficult task in confirming if the components in a given shipment imported into the US were previously imported into Mexico in one shipment if that were to be considered controlling as a matter of law. We note that the difficulty would even be greater if, in the future, the components were imported into Mexico from a third country, not the US. Since these are small, sturdy items, they do not need to be separately packed either to protect fragility or to accommodate limits on size or bulk in “packing, handling or transport.” Rather, the method chosen is to accommodate the needs of a “production operation” in terms of preferences where certain processes, such as “kitting”, should take place.

Considered separately, the cut to length pieces of non-sterile poliglecaprone suture material are classified in HTS 5402, 5403, 5404 or 5405; the needles in 9018.32; and the plastic tray in 3923. Packing materials, even if made for use with specific items, when considered separately are not parts of the items that they will package. Therefore, all three components meet the tariff shift requirement in CR 102.20-q-9018.90. Thus, the country of origin of the wound, needled suture on a plastic tray is Mexico per CR 102.11-a-3.

While not directly controlling, this is consistent with 965318, which ruled that, for both NAFTA and non-NAFTA items, the country of origin of needled sutures is the country where the joining of the needle and suture material takes place, not the country of origin of the components.

To respond to your specific requests 2 and 3, we do not agree that the product remains a product of the US upon its return from Mexico and we therefore do not agree that it would be acceptable to mark the product “Made in USA” for purposes of NAFTA country of origin marking.

We note that even if we agreed that the country of origin of your import were the USA, that does not necessarily imply that products sold in the USA could be sold simply marked Made in USA. Whether an article may be marked with the phrase "Made in the USA" or similar words denoting U.S. origin, is an issue under the authority of the Federal Trade Commission (FTC).

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).

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 J. Sheridan at 646-733-3012.


Robert B. Swierupski

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