HQ 555567: Reconsideration of Ruling concerning classification of suture removal kit

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 555567

                         April 19, 1990

CLA-2 CO:R:C:V  555567 KAC

CATEGORY:  CLASSIFICATION

TARIFF NO.:  9801.00.10 - 9801.00.25

Mr. Lewis Stein
Johnson & Johnson
One Johnson & Johnson Plaza
New Brunswick, New Jersey  08933-7002

Re:  Reconsideration of Ruling concerning classification of
     suture removal kit

Dear Mr. Stein:

     This is in response to your letter dated November 17, 1989,
to the Area Director of Customs, New York Seaport, requesting
reconsideration of New York Ruling Letter 835822 dated February
2, 1989, which was issued to B.O.S.S., Inc.  In NY 835822, it was
held that a suture removal kit consisting of a pair of Littauer
scissors, forceps and a gauze sponge was classifiable under
subheading 9018.90.80, Harmonized Tariff Schedule of the United
States (HTSUS), which provides for other medical instruments,
dutiable at 7.9 percent ad valorem.  You advise that B.O.S.S.,
Inc. is a contractor which prepares the suture removal kit for
your company.  Your request was forwarded to this office for the
preparation of a response.  We regret the delay in responding to
your request.

FACTS:

     B.O.S.S. will ship Littauer scissors of Israeli origin and
forceps and gauze sponges of U.S. origin, in bulk, from the U.S.
to Mexico for packaging operations.  In Mexico, the scissors,
forceps and gauze sponge will be repacked in a molded plastic
tray and sealed with a paper cover, after which the kit will be
returned to the U.S.

     In NY 835822, the Area Director held that the products
repackaged in Mexico constituted a set and that the scissors and
forceps imparted the "essential character" of the set.  It was
determined that the entire kit was dutiable at the rate of 7.9
percent ad valorem under HTSUS subheading 9018.90.80 (other
medical instruments) "since Customs does not allow constructive
segregation of commingled articles for separate tariff treatment
in an imported tariff entity."

     You state that, prior to being exported to Mexico for
packaging operations, the scissors are imported into the U.S.
free of duty under the U.S.-Israel Free Trade Area Agreement.
Accordingly, you assert that HTSUS subheading 9801.00.25 may
apply, thereby entitling the scissors to duty-free entry upon
return to the U.S.  You further maintain that the U.S. products
should be free of duty upon their return under HTSUS subheading
9801.00.10.

ISSUE:

     Whether the scissors, forceps and gauze sponge to be
exported to Mexico will qualify for the duty exemptions available
under HTSUS subheadings 9801.00.10 and 9801.00.25 when returned
to the U.S.

LAW AND ANALYSIS:

     HTSUS subheading 9801.00.25 provides for the duty-free entry
of:

     [a]rticles, previously imported, with respect to which the
     duty was paid upon such previous importation if (1) exported
     within three years after the date of such previous
     importation, (2) reimported without having been advanced in
     value or improved in condition by any process of manufacture
     or other means while abroad, (3) reimported for the reason
     that such articles do not conform to sample or
     specifications, and (4) reimported by or for the account of
     the person who imported them into, and exported them from,
     the United States.

Articles satisfying each of the above requirements are entitled
to duty-free treatment, assuming compliance with the documentary
requirements of section 10.8a, Customs Regulations (19 CFR
10.8a).

     In the instant case, we find that the scissors are not
entitled to classification under this duty-free provision when
returned as part of the suture removal kit.  We have consistently
held that payment of duty on the merchandise when first imported
is a prerequisite to obtaining the benefit of item 801.10, Tariff
Schedules of the United States (the precursor provision to HTSUS
subheading 9801.00.25).  See Headquarters Ruling Letters 555169
dated February 7, 1990 (merchandise initially entered duty free
under the Generalized System of Preferences, exported and then
returned for failure to meet specifications, determined to be
ineligible for TSUS item 801.10 treatment), and 058225 dated June
14, 1978.  Moreover, the scissors also fail to meet the require-
ment in clause (3) of the statute that they be reimported for the
reason that they do not conform to sample or specifications.

     HTSUS subheading 9801.00.10 provides for the duty-free
entry of U.S. products that are exported and returned without
having been advanced in value or improved in condition by any
means while abroad, provided the documentary requirements of
section 10.1, Customs Regulations (19 CFR 10.1), are met.

     Subsequent to the issuance of NY 835822 on February 2, 1989,
the U.S. Court of International Trade decided Superscope, Inc. v.
United States, 13 CIT   , 727 F.Supp. 629 (CIT 1989), which is
pertinent to the issue of the applicability of HTSUS subheading
9801.00.10 to the repackaged U.S. forceps and gauze sponge here.
The court found that glass panels of U.S. manufacture that were
exported, packaged with other components to make unassembled
stereo cabinets, and then imported into the U.S. as part of an
entirety were not advanced in value or improved in condition
while abroad, but were merely repacked.  Therefore, the court
held that the glass panels were entitled to free entry under
item 800.00, Tariff Schedules of the United States (TSUS) (the
precursor provision to HTSUS subheading 9801.00.10).

     The operations performed abroad in the instant case consist
merely of repackaging the U.S. products with the foreign
scissors.  As the mere packaging of U.S. products with other
products does not advance in value or improve in condition the
U.S. products, the portion of the kit consisting of the U.S.
forceps and gauze sponge will be eligible for the duty exemption
under HTSUS subheading 9801.00.10, provided the documentation
requirements of 19 CFR 10.1 (copy enclosed) are met.

HOLDING:

     For the reasons set forth above, we find that the scissors
of Israeli origin are not entitled to the duty exemption
available under HTSUS subheading 9801.00.25 when reimported into
the U.S.  Therefore, the scissors portion of the suture removal
kit will be fully dutiable at the rate of 7.9 percent ad valorem
under HTSUS subheading 9018.90.80.  However, as the forceps and
gauze sponge of U.S. origin will not be advanced in value or
improved in condition while abroad as a result of the packaging
operations, they will be entitled to the duty exemption under
HTSUS subheading 9801.00.10, upon compliance with the
documentary requirements of 19 CFR 10.1.


                              Sincerely,



                              Jerry Laderberg
                              Acting Director
                              Commercial Rulings Division
Enclosure

cc:  Ass't Area Dir, NIS
     847605