CLA-2 RR:TC:SM 560511 JML

TARIFF NO: 9801.00.20


Mr. Knox White, Esq.
Haynsworth, Marion, McKay & Guerard, L.L.P.
75 Beattie Place
Two Insignia Financial Plaza - Eleventh Floor
Post Office Box 2048
Greenville, SC 29602

RE: Eligibility of Chinese-origin bibs packaged in the Dominican Republic for duty- free treatment under subheading 9801.00.20, HTSUS; GRI 3(b); similar use agreement.

Dear Mr. White:

This is in response to your letter of May 23, 1997 on behalf of Gerber Childrenswear, Inc. ("Gerber"), in which you requested a binding ruling on the eligibility of Chinese-origin bibs for duty-free treatment under subheading 9801.00.20, Harmonized Tariff Schedule of the United States ("HTSUS"). Through additional correspondence received by our office on November 4, 1997, you provided a sample of the bib for our review.

FACTS:

The information provided indicates that Gerber intends to engage in certain business transactions wherein it will import Chinese-origin bibs into the United States ("U.S.") and pay duty on the same. Gerber will export the bibs to the Dominican Republic for retail packaging with assembled infant underwear as a promotional item. The underwear are assembled in the Dominican Republic as one piece infant underwear called "onesies." Gerber will then reimport the bibs (in the packaging with the underwear) into the U.S.

According to your submission, Gerber's relationship with the Dominican plant, Costura Dominicana, is one of bailor to bailee as it pertains to the delivery and return of the bibs. You claim that Gerber maintains ownership of the bibs throughout the entire process, while Costura Dominicana is responsible for the goods' safe return.

ISSUE:

Whether the Chinese-origin bibs, packaged together for retail sale with the underwear in the Dominican Republic, are eligible for duty-free treatment under subheading 9801.00.20, HTSUS, upon their reimportation into the U.S.

LAW AND ANALYSIS:

CLASSIFICATION

The first issue to be addressed is whether the packaged bib and underwear are classifiable together under one tariff provision, or whether they are each classifiable separately under different provisions.

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRIs). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied. The Explanatory Notes ("EN") to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRIs. In pertinent part, GRI 2(b) states that "[t]he classification of goods consisting of more than one material or substance shall be according to the principles of rule 3." GRI 3 states, "[w]hen, by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected" according to the terms of GRI 3. GRI 3(a) directs that the headings are regarded as equally specific when each heading refers to part only of the items in a set put up for retail sale. Therefore, to determine whether the article might be classified under one provision, we look to GRI 3(b), which states in pertinent part that:

[g]oods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable.

The EN for GRI 3(b) define "goods put up for sets in retail sale" as goods which consist of at least two different articles which are classifiable in different headings; consist of products or articles put up together to meet a particular need or carry out a specific activity; and are put up in a manner suitable for sale directly to users without repacking.

Applying this definition to the instant case, Customs is of the opinion that the bib and underwear are not "goods put up in sets for retail sale." The bib and the underwear are products used for entirely different purposes. The products do not, together, meet a particular need or carry out a specific activity. As they do not qualify as a set under GRI 3(b), the bib and underwear packaged together are to be each classified separately in accordance with the principles of GRI 1.

9801.00.20

Subheading 9801.00.20, HTSUS, provides duty-free treatment for:

[a]rticles, previously imported, with respect to which the duty was paid upon such previous importation or which were previously free of duty pursuant to the Caribbean Basin Economic Recovery Act or Title V of the Trade Act of 1974, if (1) reimported, without having been advanced in value or improved in condition by any process of manufacture or other means while abroad, after having been exported under lease or similar use agreements, and (2) reimported by or for the account of the person who imported it into, and exported it from, the United States. Section 10.108, Customs Regulations (19 CFR 10.108), provides, in relevant part, that free entry shall be accorded under subheading 9801.00.20, HTSUS, whenever it is established to the satisfaction of the port director that the article for which free entry is claimed was duty paid on a previous importation, is being reimported by or for the account of the person who previously imported it into, and exported it from the U.S., and was exported from the U.S. under lease or similar use agreement.

In this case, to the extent the transaction at issue is prospective in nature, we assume that Gerber is the original importer of the bibs and paid duty on them. Copies of sample entries provided supports these facts. It also appears that Gerber will be the party reimporting the bibs since they are to be retailed as a Gerber product in its packaging. Moreover, Customs does not consider merely packaging a good for retail sale as an advancement in value or improvement in condition. See John v. Carr & Sons, Inc., 69 Cust.Ct. 78, C.D. 4377 (1972), aff'd, 61 CCPA 52, C.A.D. 1118 (1974); Headquarters Ruling Letter ("HRL") 555624, dated May 1, 1990 (perfumes packaged into sample pouches abroad not advanced in value or improved in condition for purposes of subheading 9801.00.10 treatment).

Thus, the question turns on whether the bibs will be exported abroad under a "lease or similar use agreement" as required under subheading 9801.00.20, HTSUS. The predecessor of subheading 9801.00.20, HTSUS, was item 801.00 of the Tariff Schedules of the United States (TSUS). That particular provision was amended in 1984 to provide for articles that had been exported under "similar use agreements" and leases to entities other than foreign manufacturers. Trade and Tariff Act of 1984, Pub. L. No. 98-573, 118, 98 Stat. 4922 (1984) Before the amendment, duty-free treatment applied only to merchandise that had been exported under lease to foreign manufacturers. In Werner & Pfleiderer Corporation. v. United States, 17 C.I.T. 916 (1993), a recent case interpreting the amended language of item 801.00, Tariff Schedules of the United States ("TSUS") (the precursor provision to subheading 9801.00.20, HTSUS), the Court of International Trade stated that "the provision concerning goods exported under lease, in particular, is not the sort of exemption from duties which must be narrowly construed." At issue was whether or not a loan arrangement was the type of "similar use agreement" contemplated by item 801.00, TSUS. In holding that a loan was a "similar use agreement," the court opined that if the drafters of that provision intended the provision to encompass nothing broader than a lease, then the language "similar use agreement" would not have been added to the provision. See also Headquarter's Ruling Letter ("HRL") 559937, dated July 25, 1997

You contend that the situation under which Gerber will export the bibs to the Dominican Republic is one of bailment. You claim that a bailment arrangement is a qualified "similar use agreement" for purposes of subheading 9801.00.20, HTSUS. In this regard we note the definition of bailment as stated in Blacks's Law Dictionary:

A delivery of goods of personal property, by one person (bailor) to another (bailee), in trust for the execution of a special object upon or in relation to such goods, beneficial to either to the bailor or bailee or both, and upon a contract, express or implied, to perform the trust and carry out such object, and thereupon either to redeliver the goods to the bailor or otherwise dispose of the same in conformity with the purpose of the trust. (emphasis added). Black's Law Dictionary (6th ed. 1990)

You state that Gerber delivers materials and parts for packaging operations in the Dominican Republic but that Gerber maintains ownership of the materials throughout the process. In accordance with the above-stated findings of the courts and Customs rulings, we find that such a relationship qualifies as a "similar use agreement" for purposes of subheading 9801.00.20, HTSUS. Thus, assuming Gerber provides evidence to the port director's satisfaction in accordance with the documentary requirements of section 10.108, Customs Regulations, the bibs will be eligible for duty-free treatment under subheading 9801.00.20, HTSUS, upon their reimportation into the U.S.

HOLDING:

Based on the information submitted, we find that the bibs packaged in the Dominican Republic will be eligible for duty-free treatment under subheading 9801.00.20, HTSUS, when returned to the U.S., provided Gerber previously imported the bibs and paid duty thereon; they are reimported by or for the account of Gerber; and the documentary requirements of section 10.108, Customs Regulations, are satisfied.

A copy of this ruling letter should be attached to the entry documents filed at the time the goods are entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the Customs officer handling the transaction.

Sincerely,

John Durant, Director
Commercial Rulings Division