[Federal Register Volume 73, Number 188 (Friday, September 26, 2008)]
[Notices]
[Pages 55860-55862]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-22683]
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DEPARTMENT OF HOMELAND SECURITY
U.S. Customs and Border Protection
Notice of Issuance of Final Determination Concerning Certain Mesh
Dressing
AGENCY: U.S. Customs and Border Protection, Department of Homeland
Security.
ACTION: Notice of final determination.
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SUMMARY: This document provides notice that U.S. Customs and Border
Protection (``CBP'') has issued a final determination concerning the
country of origin of certain mesh dressing known as Tegaderm\TM\ Ag
Mesh Dressing. Based upon the facts presented, CBP has concluded in the
final determination that the United States is the country of origin of
the Tegaderm\TM\ Ag Mesh Dressing for purposes of U.S. Government
procurement.
DATES: The final determination was issued on September 22, 2008. A copy
of the final determination is attached. Any party-at-interest, as
defined in 19 CFR 177.22(d), may seek judicial review of this final
determination within October 27, 2008.
FOR FURTHER INFORMATION CONTACT: Cynthia Reese, Valuation and Special
Programs Branch, Regulations and Rulings, Office of International Trade
(202-572-8812).
SUPPLEMENTARY INFORMATION: Notice is hereby given that on September 22,
2008, pursuant to subpart B of part 177, Customs and Border Protection
(CBP)
[[Page 55861]]
Regulations (19 CFR Part 177, Subpart B), CBP issued a final
determination concerning the country of origin of Tegaderm\TM\ Ag Mesh
Dressing which may be offered to the United States Government under an
undesignated government procurement contract. This final determination,
in HQ H035776, was issued at the request of 3M Company under procedures
set forth at 19 CFR Part 177, Subpart B, which implements Title III of
the Trade Agreements Act of 1979, as amended (19 U.S.C. 2511-18). In
the final determination, CBP has concluded that, based upon the facts
presented, Tegaderm\TM\ Ag Mesh Dressing which is produced in the
United States from foreign nonwoven cotton fabric is a product of the
United States for purposes of U.S. Government procurement.
Section 177.29, CBP Regulations (19 CFR 177.29), provides that
notice of final determinations shall be published in the Federal
Register within 60 days of the date the final determination is issued.
Section 177.30, CBP Regulations (19 CFR 177.30), provides that any
party-at-interest, as defined in 19 CFR 177.22(d), may seek judicial
review of a final determination within 30 days of publication of such
determination in the Federal Register.
Dated: September 22, 2008.
Jeremy Baskin,
Acting Executive Director, Regulations and Rulings, Office of
International Trade.
HQ H035776
September 22, 2008
VAL-2 OT:RR:CTF:VS H035776 CMR
CATEGORY: Marking
TARIFF NO.: 3005.90
Mr. Matthew Fuller, Trade Compliance Department, 3M Company 3M Center,
Building 225-4S-18, St. Paul, MN 55144-1000
RE: Origin determination of Tegaderm\TM\ Ag Mesh Dressing for purposes
of Government Procurement
Dear Mr. Fuller: This ruling is in response to your request of
August 6, 2008, for a determination as to the country of origin of
Tegaderm\TM\ Ag Mesh Dressing which is sold by 3M. You indicate that 3M
is the importer of record of the nonwoven cotton fiber fabric used in
the production of Tegaderm\TM\ Ag Mesh Dressing and, as such, has
standing to request this ruling pursuant to 19 CFR 177.23(a) and Sec.
177.24.
FACTS:
3M imports nonwoven cotton fiber fabric which is produced by and
purchased from suppliers outside the United States. At the time of
importation, the nonwoven cotton fabric is in large (Jumbo) rolls and
has no finishing on it. It is classifiable as a nonwoven fabric of
heading 5603 of the Harmonized Tariff Schedule of the United States
(HTSUS).\1\
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\1\ Heading 5603, HTSUS, provides for ``Nonwovens, whether or
not impregnated, coated, covered or laminated.'' We note that you
indicate a belief that the nonwoven cotton fabric which is imported
by 3M is classifiable in subheading 5603.12, HTSUS, however, that
provision provides for nonwovens of man-made filaments. The correct
subheading is 5603.92.00, HTSUS, which provides for nonwovens of
other than man-made filaments, weighing more than 25 g/m\2\ but not
more than 70 g/m\2\.
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After importation, the nonwoven cotton fabric is processed so as to
be impregnated with silver sulfate which is manufactured in the United
States. The impregnated fabric is then slit to desired widths, cut to
size (length), and packaged into pouches which are then sealed. The
pouches are labeled, packed into cases, and then sent for
sterilization. The finished Tegaderm\TM\ Ag Mesh Dressings are then
ready for retail sale in the United States or for export.
The silver sulfate with which the nonwoven fabric is impregnated is
the ``active ingredient'' in the product. It is the silver sulfate
which causes wounds to heal quicker. On its web site, 3M claims with
regard to this product: ``Silver sulfate releases as silver ions in the
dressing creates an effective antimicrobial barrier for up to 7 days.''
It is further claimed that these silver ions reduce the number of
bacteria and yeast.
You assert that the finished dressings are products of the United
States under application of the rules of origin for textile and apparel
products set forth in the Customs and Border Protection (CBP)
regulations at 19 CFR 102.21 (implementing 19 U.S.C. 3592). In the
alternative, you assert that the finished dressings are products of the
United States under the traditional substantial transformation test set
forth in 19 U.S.C. 2518.\2\ The CBP regulations implementing 19 U.S.C.
2515(b)(1), which provides that the Secretary of the Treasury shall
issue advisory rulings and final determinations on the origin of an
article under the provisions of 19 U.S.C. 2511 through 2518, are found
at 19 CFR 177.21 through 177.31. 19 U.S.C. 2511 through 2518 implement
Title III of the Trade Agreements Act of 1979, as amended, which
effectuated U.S. obligations under the Agreement on Government
Procurement.\3\
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\2\ 19 U.S.C. 2518(4)(B) defines the rule of origin for purposes
of Government Procurement.
\3\ See Title III, Trade Agreements Act of 1979, as amended, and
the Agreement on Government Procurement, General Agreement on
Tariffs and Trade, 12 April 1979, Geneva (GATT 1979).
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ISSUE:
What is the country of origin of the finished Tegaderm\TM\ Ag Mesh
Dressings for purposes of U.S. Government procurement?
LAW AND ANALYSIS:
Pursuant to Subpart B of Part 177, 19 CFR 177.21 et seq., which
implements Title III, Trade Agreements Act of 1979, as amended (19
U.S.C. 2511-2518), CBP issues country of origin advisory rulings and
final determinations as to whether an article is or would be a product
of a designated country or instrumentality for the purpose of granting
waivers of certain ``Buy American'' restrictions in U.S. law or
practice for products offered for sale to the U.S. Government.
Initially, we note that 3M is permitted to request this ruling as
it is the importer of record and thus meets the requirements of 19 CFR
177.23(a) and 177.24. In addition, 3M meets the definition of a party-
at-interest as defined at 19 CFR 177.22(d) and is entitled to a final
determination as to the country of origin of the finished Tegaderm\TM\
Ag Mesh Dressings produced from imported nonwoven cotton fabric.
The rule of origin set forth in 19 U.S.C. 2518(4)(B) states:
An article is a product of a country or instrumentality only if
(i) it is wholly the growth, product, or manufacture of that country
or instrumentality, or (ii) in the case of an article which consists
in whole or in part of materials from another country or
instrumentality, it has been substantially transformed into a new
and different article of commerce with a name, character, or use
distinct from that of the article or articles from which it was so
transformed.
See also 19 CFR 177.22(a) defining ``country of origin'' in
identical terms.
In rendering advisory rulings and final determinations for purposes
of U.S. Government procurement, CBP applies the provisions of Subpart B
of Part 177 consistent with the Federal Procurement Regulations. See 19
CFR 177.21. In this regard, CBP recognizes that the Federal Procurement
Regulations restrict the U.S. Government's purchase of products to
U.S.-made or designated country end products for acquisitions subject
to the TAA. See 48 CFR 25.403(c)(1). The Federal Procurement
Regulations define ``U.S.-made end product'' as: * * * an article that
is mined, produced, or manufactured in the United States or
[[Page 55862]]
that is substantially transformed in the United States into a new and
different article of commerce with a name, character, or use distinct
from that of the article or articles from which it was transformed. 48
CFR 25.003. Therefore, the question presented in this final
determination is whether, as a result of the operations performed in
the United States, the nonwoven cotton fabric is substantially
transformed into a product of the United States.
The rules of origin for textile products for purposes of the
customs laws and the administration of quantitative restrictions are
set forth in 19 U.S.C. 3592. These provisions are implemented in the
CBP Regulations at 19 CFR 102.21. The rules set forth in Sec. 3592
apply to textile and apparel products, unless otherwise provided for by
statute. The rule of origin in Sec. 2518(4)(B) is a rule of origin
otherwise provided for by statute, however, it is a general rule,
whereas Sec. 3592 is specific to textile products. Section 3592 has
been described as Congress's expression of substantial transformation
as it relates to textile products.
The rules of origin in 19 U.S.C. 3592 are implemented in the CBP
Regulations in 19 CFR 102.21. The imported product is a nonwoven
textile fabric. The finished product, Tegaderm\TM\ Ag Mesh Dressings,
is also a textile product as defined by 19 CFR 102.21(b)(5).
Tegaderm\TM\ Ag Mesh Dressings are classified in subheading 3005.90,
HTSUS, which provides for ``Wadding, gauze, bandages and similar
articles (for example, dressings, adhesive plasters, poultices),
impregnated or coated with pharmaceutical substances or put up in forms
or packings for retail sale for medical, surgical, dental or veterinary
purposes'' other than adhesive dressings and other articles having an
adhesive layer.
As the finished dressing is produced by processing in more than one
country, its origin cannot be determined by application of Sec.
102.21(c)(1), wholly obtained or produced rule, and resort must be made
to Sec. 102.21(c)(2). Section 102.21(c)(2) states that the origin of a
good is the country ``in which each foreign material incorporated in
that good underwent an applicable change in tariff classification, and/
or met any other requirement, specified for the good in paragraph (e)
of [102.21].'' Section 102.21(e) provides in pertinent part:
(1) The following rules will apply for purposes of determining
the country of origin of a textile or apparel product under
paragraph (c)(2) of this section:
3005.90 If the good contains pharmaceutical substances, a change to
subheading 3005.90 from any other heading; * * *.
The material of foreign origin in this case is the nonwoven cotton
fabric classifiable in heading 5603, HTSUS. The processing in the
United States causes the foreign origin material to make a tariff shift
from heading 5603 to subheading 3005.90, HTSUS. Therefore, by
application of the rules set forth in 19 CFR 102.21, the finished
Tegaderm\TM\ Ag Mesh Dressings are products of the United States for
purposes of government procurement.
HOLDING:
Based on the facts and analysis set forth above, the finished
Tegaderm\TM\ Ag Mesh Dressings are products of the United States for
the purpose of government procurement.
Notice of this final determination will be given in the Federal
Register, as required by 19 CFR Sec. 177.29. Any party-at-interest
other than the party which requested this final determination may
request, pursuant to 19 CFR 177.31, that CBP reexamine the matter anew
and issue a new final determination. Pursuant to 19 CFR 177.30, any
party-at-interest may, within 30 days after publication of the Federal
Register notice referenced above, seek judicial review of this final
determination before the Court of International Trade.
Sincerely,
Jeremy Baskin
Acting Executive Director
Regulations and Rulings
Office of International Trade
[FR Doc. E8-22683 Filed 9-25-08; 8:45 am]
BILLING CODE 9111-14-P