The tariff classification and country of origin marking of the ‘Sterility and Aseptic Technique’ training kit from China.

N300209 September 19, 2018 CLA-2-96:OT:RR:NC:N4:415 CATEGORY: Classification TARIFF NO.: 9603.90.8050 Ms. Cindi Kavanaugh Mohawk Global Trade Advisors 4455 Genesee Street, Suite 521 Cheektowaga, NY 14225 RE: The tariff classification and country of origin marking of the ‘Sterility and Aseptic Technique’ training kit from China. Dear Ms. Kavanaugh: In your letter dated August 15, you requested a tariff classification and country of origin marking ruling on behalf of your client The Apprentice Corporation. A sample was submitted and will be returned separately. The article under consideration consists of: 10 gowns, two steri-sheets (the gowns are packed in this), 10 overshoes (pairs), 10 surgeon caps, 10 mop caps, 10 surgical masks, 10 surgery brushes, 20 disposable paper towels, 10 plastic protective aprons, one red waste bag, one leaflet/flyer, one hand glove size chart, one hand rub/hand wash diagram, 20 sterile pairs of gloves, and one box of 100 surgical gloves. The goods will be packaged in a retail box, which states, “Future Doctors Academy’s ‘Sterility and Aseptic Technique’ Training Kit.” The kit is intended for classroom instruction and training purposes. In your submission, you suggest classifying the ‘Sterility and Aseptic Technique’ training kit in heading 9023, Harmonized Tariff Schedule of the United States (HTSUS), which provides for “[i]nstruments, apparatus and models, designed for demonstrational purposes (for example, in education or exhibitions), unsuitable for other uses, and parts and accessories thereof.” Based on the information provided, the training kit in question does not meet the terms of heading 9023. While you state that the training kit is intended for use in a classroom environment, the language of heading 9023 indicates that a product classified in this provision must be “unsuitable for other uses.” The myriad of elements in the training kit (gloves, brushes, surgical masks, etc.) are evidently of a standard type, and would be suitable for other uses. The training kit is a collection of utilitarian elements that, even if put together for the purpose of classroom training, do not meet the terms of heading 9023. Consequently, the training kit would not be classified in heading 9023. Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRIs), 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. Since no one heading in the tariff schedules covers the components of this kit in combination, GRI 1 cannot be used as a basis for classification. GRI 3(b) provides that mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale shall be classified as if they consisted of the material or component, which gives them their essential character. We consider this kit to qualify as a set put up for retail sale as per GRI 3(b), but are of the opinion that none of the individual items provide the essential character. GRI 3(c) provides that when goods cannot be classified by reference to GRI 3(a) or 3(b), they are to be classified in the heading that occurs last in numerical order among the competing headings that equally merit consideration. The surgical brushes would be classified under heading 9603, which occurs last in numerical order in comparison to all the other items, GRI 3(c) noted. The applicable subheading for the ‘Sterility and Aseptic Technique' Training Kit, will be 9603.90.8050, HTSUS, which provides for “[b]rooms, brushes (including brushes constituting parts of machines, appliances or vehicles), hand-operated mechanical floor sweepers, not motorized, mops and feather dusters; prepared knots and tufts for broom or brush making; paint pads and rollers; squeegees (other than roller squeegees): [o]ther: [o]ther: [o]ther.” The column one, general rate of duty is 2.8% ad valorem. Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at https://hts.usitc.gov/current. In your submission, you inquire about the country of origin marking and have provided a sample of the label with the country of origin marking. You state that on your label all addresses, domestic or foreign, are in the same area of the label. Further, the U.S. address and South African address along with the country of origin (China) of the goods contained within the kit are in the same section, therefore being in close proximity. You indicate the font size used for the country of origin of the goods is the same as those indicating the U.S. and South African addresses shown. 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 United States the English name of the country of origin of the article. Part 134, Customs Regulations (19 CFR 134) implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304.Section 134.1(b), Customs Regulations (19 CFR 134.1(b)), defines "country of origin" as: “The country of manufacture, production or growth of any article of foreign origin entering the United States. Further work or material added to an article in another country must effect a substantial transformation in order to render such other country the ‘country of origin’ within the meaning of this part.”A substantial transformation occurs when an article emerges from a process with a new name, character or use different from that possessed by the article prior to processing. A substantial transformation will not result from a minor manufacturing or combining process that leaves the identity of the article intact. See United States v. Gibson-Thomsen Co., 27 C.C.P.A. 267 (1940); and National Juice Products Association v. United States, 628 F. Supp. 978 (Ct. Int’l Trade 1986).As all of the articles are made in China and are then repackaged in South Africa, we find this packaging of the assorted items does not result in a substantial transformation and the country of origin will be China. With regard to the permanency of a marking, section 134.41(a), Customs Regulations (19 CFR 134.41(a)), provides that as a general rule marking requirements are best met by marking worked into the article at the time of manufacture. For example, it is suggested that the country of origin on metal articles be die sunk, molded in, or etched. However, section 134.44, Customs Regulations (19 CFR 134.44), generally provides that any marking that is sufficiently permanent so that it will remain on the article until it reaches the ultimate purchaser unless deliberately removed is acceptable.In order to meet the marking requirements, the packaging for this kit must be conspicuously, legibly and permanently marked with the country of origin in satisfaction of the marking requirements of 19 U.S.C. 1304 and 19 CFR 134. Accordingly, marking the outer most container “Country of origin of items: China” in which this kit is imported and sold to the ultimate purchaser is an acceptable country of origin marking. If a U.S. reference appears on the imported packaging for this kit when it is imported into the U.S., it is necessary to consider the necessity for additional marking. Section 134.46, Customs Regulations (19 CFR 134.46), deals with cases in which the words “United States,” “American,” the letters “U.S.A.,” or any variation of such words or letters, or the name of any city or locality in the United States, or the name of any foreign country or locality other than the country or locality in which the article was manufactured or produced, appears on an imported article or its container, and those words, letters or names may mislead or deceive the ultimate purchaser as to the actual country of origin. In such a case, there shall appear, legibly and permanently, in close proximity to such words, letters, or name, and in at least a comparable size, the name of the country of origin preceded by “Made in,” Product of,” or other words of similar meaning. The purpose of this requirement is to prevent the possibility of misleading or deceiving the ultimate purchaser of an article as to the actual origin of the imported good.  The provided packaging for the sample differs from the submitted label. It features in bold font “An educational product produced for:” with a U.S. address. In smaller, non-bold, font “Produced in South Africa by:” and “Final compilation in the USA by:” This packaging does not appear to be legally marked with the proper country of origin. The label fails to indicate that the products are manufactured in China and instead indicates that it is “Produced in South Africa,” which is misleading. Additionally, the font of the U.S. address is differentiated from the foreign address and that is not acceptable. The provided label uses “An educational product produced for:” with the U.S address. Directly next to this it indicates: “Kit compiled in South Africa by” with a South African address and “Country of origin of items: China” below it. As described in your submission, they all appear bolded and the same font size. As this clearly indicates this is a product of China and is in close proximity to the U.S. address, this marking would be acceptable. As you indicate custom orders may be further manipulated within the U.S., we note that 19 CFR 134.26 may be applicable, which provides, in pertinent part: [i]f an article subject to these requirements is intended to be repacked in retail containers (e.g., blister packs) after its release from customs custody, or if the Center director has reason to believe such article will be repacked after its release, the importer shall certify to the Center director that: (1) If the importer does the repacking, he shall not obscure or conceal the country of origin marking appearing on the article, or else the new container shall be marked to indicate the country of origin of the article in accordance with the requirements of this part; or (2) if the article is intended to be sold or transferred to a subsequent purchaser or repacker, the importer shall notify such purchaser or transferee, in writing, at the time of sale or transfer, that any repacking of the article must conform to these requirements.It is important to note that the procedures set forth at 19 CFR 134.26 apply only to articles, which are legally marked at the time of importation. If the articles are not legally marked at the time of importation, the presentation to Customs of the certification and notice to subsequent purchasers or repackers specified in 19 CFR 134.26 will not serve to satisfy the importer’s obligations This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 CFR 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 Kristopher Burton at kristopher.burton@cbp.dhs.gov. Sincerely, Steven A. Mack Director National Commodity Specialist Division