CLA-2 CO:R:C:F 088812 SLR

Robert H. Schor, Esq.
Barnes, Richardson & Colburn
475 Park Avenue South
New York, NY 10016

RE: Blood Diagnostic Disposable Cartridge from Canada; GRI 3(b); Composite Diagnostic or Laboratory Reagents of Heading 3822; United States-Canada Free Trade Agreement; Subheading 9802.00.80; Subheading 9801.00.10; U.S. Goods Returned.

Dear Mr. Schor:

This is in response to your letter of August 9, 1990, on behalf of your client, I-STAT Corporation, regarding the classification of a blood diagnostic disposable cartridge under the Harmonized Tariff Schedule of the United States Annotated [hereinafter "HTSUSA"]. A sample was forwarded for our examination.

FACTS:

The item at issue is composed of plastic and metal, contains reagents, is approximately 1-3/4" long x 1-1/6" wide x 1/4" deep, and is used to test blood components for diagnostic purposes (in conjunction with a hand held analyzer made in the U.S.). The cartridge is disposable, marketed in boxes containing 12 to 24 foil packages, and sold primarily to hospitals. You refer to the instant product as the "test pack."

In your letter, you maintain that the test pack is classifiable in heading 3822, HTSUSA, which provides for composite diagnostic or laboratory reagents. In addition, you posit that the merchandise in question qualifies for a reduction in duty under the United States-Canada Free Trade Agreement [hereinafter "CFTA"]. You indicate that most of the components and packaging of the cartridge are manufactured in the U.S. and exported to Canada for simple snap together assembly, and return. The remaining components are manufactured in Canada.

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ISSUES:

I. Whether the test pack is classifiable in heading 3822, HTSUSA, the provision for composite diagnostic or laboratory reagents.

II. Whether the product qualifies for a reduction in duty under the CFTA.

III. Whether the product's U.S.-made components qualify for the partial duty exemption under subheading 9802.00.80, HTSUSA, when returned to the U.S.

IV. Whether the product's packing materials qualify for the duty exemption under subheading 9801.00.10, HTSUSA.

LAW AND ANALYSIS:

ISSUE I

Classification of merchandise under the HTSUSA is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification is determined according to the terms of the headings and any relative section or chapter notes.

No heading within the Nomenclature provides for plastic cartridges containing chemical reagents. Consequently, GRI 1 is of no assistance in classifying the product in question. The remaining GRI's, therefore, must be consulted.

The present product consists of a plastic cartridge and chemical reagents, the former classifiable in heading 3926, HTSUSA, which provides for other articles of plastics; the latter classifiable in heading 3822, HTSUSA, which provides for composite diagnostic or laboratory reagents. As the product is made up of two components classifiable under different headings, GRI 3 must be consulted.

GRI 3(a) provides that articles classifiable under two or more headings are to be classified under the heading which provides the most specific description of the goods in question. All headings are regarded as equally specific, however, when each refers to part only of the goods.

Each of the headings in question -- heading 3926 and heading 3822 -- refers to part only of the merchandise in question. As the headings are regarded as equally specific, classification of the subject product cannot be determined by application of GRI 3(a). Consequently, we must turn our attention to GRI 3(b). -3-

GRI 3(b) provides that goods made up of two or more components shall be classified as if they consisted of the component which gives them their essential character. "Essential character" may be determined by the nature of the material, its bulk, quantity, weight or value, or by the role of the constituent material in relation to the use of the goods. Here, the chemical reagent is the active principle within the cartridge; the cartridge simply acts as a carrier for the blood sample. The chemical reagent component, therefore, represents the essential character of the product in question, and the product as a whole is classifiable under heading 3822.

The applicable subheading for the product is 3822.00.5090 HTSUSA. The corresponding rate of duty under the "General" column is 5 percent ad valorem. The "Special" column, however, indicates that goods originating from Canada enjoy a reduced duty rate of 1 percent ad valorem. Does the merchandise at hand qualify for a reduction in duty under the CFTA?

ISSUE II

Under specific circumstances, goods originating in the territory of Canada which enter the territory of the U.S. are entitled to a reduction in duty under the CFTA. Articles which are considered "goods originating in the territory of Canada" under General Note 3(c)(vii)(B), HTSUSA, are those which are "obtained or produced" or "transformed" in "Canada and/or the United States" (bold added). Thus, goods made of originating components from both the United States and Canada are considered to be "goods originating in the territory of Canada" for purposes of General Note 3(c)(vii)(B).

Here, the cartridges and their accompanying packaging are stated to be of Canadian and U.S. origin. The test packs, therefore, are entitled to a reduction in duty under the CFTA. Please be reminded that all necessary documentation relating to CFTA status must be presented upon entry.

ISSUE III

Chapter 98, Subchapter II, HTSUSA, incorporates provisions that apply to articles which are exported and then returned to the United States. Subheading 9802.00.80, HTSUSA, provides a partial duty exemption for:

Articles 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 -4-

(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 of the above-mentioned requirements must be satisfied before a component may receive a duty allowance. An article entered under subheading 9802.00.80 is subject to duty upon the full cost or value of the imported assembled article, less the cost or value of the U.S. components assembled therein, upon compliance with the documentary requirements of section 10.24 Customs Regulations (19 CFR 10.24).

From the information provided, it appears that requirements (a) and (b) have been met. Moreover, as section 10.16(a) Customs Regulations (19 CFR 10.16(a)) considers any method used to join or fit together solid components a proper assembly operation, requirement (c) has been satisfied. The merchandise at issue, therefore, qualifies for the partial duty exemption under subheading 9802.00.80.

ISSUE IV

With respect to containers, GRI 5(b) provides that, "[p]acking materials and packing containers presented with the goods therein shall be classified with the goods if they are of a kind normally used for the packing of such goods. However, this provision does not apply when such packing materials or packing containers are clearly suitable for repetitive use." Therefore, the value of a non-reusable container normally used for packing is dutiable at the rate of its contents. However, upon submission of satisfactory proof that a container is of U.S. origin and that it is returned without having been advanced in value or improved in condition abroad, it is entitled to duty-free treatment under subheading 9801.00.10, HTSUSA, provided the documentary requirements of section 10.1, Customs Regulations (19 CFR 10.1), are met. Here, the operations performed in Canada (the filling of the U.S.-made foil packs followed by the simple manipulation of the U.S.-made fold-up boxes to accommodate these goods) do not constitute an advancement in value or improvement in condition of the U.S. packing components. Consequently, the U.S.-made foil packs and paperboard boxes are eligible for duty free treatment under subheading 9801.00.10, HTSUSA.

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HOLDING:

The merchandise at issue is classifiable in subheading 3822.00.5090, HTSUSA, which provides for composite diagnostic or laboratory reagents, other than those of heading 3002 or 3006: other (than containing antigens or antisera): other. The "General" rate of duty is 5 percent ad valorem.

The merchandise at issue is entitled to a reduced duty rate of 1 percent ad valorem under the CFTA. All necessary documentation relevant to CFTA status must be presented upon entry, however.

The merchandise at issue is entitled to the partial duty exemption under subheading 9802.00.80, HTSUSA. Therefore, the 2 percent duty rate would be applied against the fully appraised value of the article less the cost or value of the U.S. fabricated components. All necessary documentation under 19 CFR 10.24 must be presented upon entry.

The U.S.-made foil packs and paperboard boxes are entitled to duty free entry under subheading 9801.00.10, HTSUSA. All necessary documentation under 19 CFR 10.1 must be presented upon entry.

Sincerely,

John Durant, Director
Commercial Rulings Division