[Federal Register Volume 76, Number 199 (Friday, October 14, 2011)]
[Notices]
[Pages 63942-63944]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-26550]


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DEPARTMENT OF HOMELAND SECURITY

U.S. Customs and Border Protection


Notice of Issuance of Final Determination Concerning a Surgical 
Mask With a Protective Eye Shield

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 a Surgical Mask with a Protective Eye Shield. 
Based upon the facts presented, CBP has concluded in the final 
determination that Turkey is the country of origin of the Surgical Mask 
with a Protective Eye Shield, for purposes of U.S. Government 
procurement.

DATES: The final determination was issued on October 5, 2011. 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 on or before November 14, 2011.

FOR FURTHER INFORMATION CONTACT: Robert Dinerstein, Valuation and 
Special Programs Branch: (202) 325-0132.

SUPPLEMENTARY INFORMATION: Notice is hereby given that on October 5, 
2011, pursuant to subpart B of part 177, Customs Regulations (19 CFR 
part 177, subpart B), CBP issued a final determination concerning the 
country of origin of the Surgical Mask with a Protective Eye Shield, 
which may be offered to the U.S. Government under an undesignated 
government procurement contract. This final determination, in HQ 
H175429, was issued at the request of Berkley Surgical Company, Inc. 
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 explained that, 
because the surgical mask is classified in the Harmonized Tariff 
Schedule of the United States (HTSUS) as a textile product, its country 
of origin is governed by the country of origin rules for textile 
products, which is set forth in 19 U.S.C. 3592. The country of origin 
rules for textile products are implemented by the CBP Regulations at 19 
CFR 102.21. Applying the specific rule of origin in 19 CFR 102.21 for 
products classified in subheading 6370.90, HTSUS, we determined that 
because the manufacturing process involved in producing the surgical 
face mask occurs in Turkey, the country of origin of the surgical mask 
with an eye-shield for purposes of government procurement is Turkey.
    Section 177.29, Customs 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: October 5, 2011.
Sandra L. Bell,
Executive Director, Regulations and Rulings, Office of International 
Trade.

Attachment

HQ H175429

October 5, 2011
MAR-02 OT:RR:CTF:VS H175429 RSD
CATEGORY: MARKING

Mr. Domenic Tommarello, Vice President
Berkley Surgical Company
49 Virginia Avenue
Uniontown, Pennsylvania 15401

RE: Final Determination; U.S. Government Procurement; Country of 
Origin of a Surgical Face Mask with a Protective Eye Shield; 19 CFR 
Sec.  177.21; Textile Rules of Origin, 19 CFR Sec.  102.21(c)(4)

    Dear Tommarello:
    This is in response to a letter dated June 27, 2011, requesting 
a final determination pursuant to subpart B Part 177, Customs and 
Border Protection (``CBP'') Regulations (19 CFR Sec.  177.21 et. 
seq.). Under these regulations, which implement Title III of the 
Trade Agreements Act of 1979, as amended (codified at 19 U.S.C. 
Sec.  2511 et seq.), CBP issues country of origin advisory rulings 
and final determinations on 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. This final determination concerns the country of origin 
of a fluid resistant surgical face mask with an eye shield. We note 
that Berkley Surgical Company (Berkley) is a party-at-interest

[[Page 63943]]

within the meaning of 19 CFR Sec.  177.22(d)(1) and is entitled to 
request this final determination.

FACTS:

    The product at issue is a surgical face mask with an eye shield. 
The product is made to be compliant with the United States Food and 
Drug Administration's (FDA) requirements for such medical devices. 
Berkley imports fluid resistant surgical face masks without the eye 
shields from Turkey. According to the information submitted, the 
surgical face masks without eye shields are manufactured in Turkey. 
The outer facing of the surgical face masks are made from printed 
cellulose or colored polypropylene spun bond non-woven. The surgical 
mask has two filters inside of it. The first filter is made from 100 
percent melt-blown polypropylene and is made in the U.S. The second 
filter is made of non-woven netting. The inner facing of the mask is 
made from a white cellulose material. In order to keep the surgical 
mask in place, it contains a nose wire made from aluminum or coated 
metal wire. To tie the mask around the face, edge tapes and tie 
tapes made of polypropylene or polyester non-woven are used. The 
surgical mask has ear loops made from knitted polyester. All of the 
other fabrics used in producing the surgical face mask are made in 
Turkey.
    After the surgical mask is imported into the U.S., the 
transparent eye shield is permanently attached to it through an 
ultrasonic bonding process. The eye shield provides the wearer 
splash protection for the eyes, nose and mouth area in a single-
device. This eliminates the need for separate and more expensive 
eye-wear. The eye-shield is made in the United States of optical 
quality polyester film. The eye-shield accounts for more than 68 
percent of the total value of the finished product. The final 
product is packaged in the United States with packer boxes and 
shipper boxes manufactured in the United States.
    You have indicated that the finished surgical face mask with an 
eye-shield is classified in subheading 6307.90.98 of the Harmonized 
Tariff Schedule of the United States (HTSUS). Samples were submitted 
with your request.

ISSUE:

    What is the country of origin of the finished surgical mask with 
a protective eye shield for purposes of U.S. government procurement?

LAW AND ANALYSIS:

    Pursuant to subpart B of part 177, 19 C.F.R Sec.  177.21 et 
seq., which implements Title III of the Trade Agreements Act of 
1979, as amended (19 U.S.C. Sec.  2511 et seq.), 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.

Under the rule of origin set forth under 19 U.S.C. Sec.  2518(4)(B):
    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 C.F.R Sec.  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 Sec.  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 Sec.  
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 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. See 48 CFR Sec.  
25.003. Therefore, the question presented in this final 
determination is whether, as a result of the operations performed in 
the United States, the imported surgical face mask is substantially 
transformed into a product of the United States.
    With regard to the surgical face mask with a protective eye 
shield at issue, your request involves determining whether the 
article is a U.S.-made end product or a product of Turkey. The 
information submitted indicates that the surgical mask is made 
chiefly from non-woven textile fabrics. You also indicate that it is 
classified in subheading 6307.90.98, HTSUS, as a textile product. 
The rules of origin for textile products for purposes of the customs 
laws and the administration of quantitative restrictions are 
governed by 19 U.S.C. Sec.  3592, unless otherwise provided for by 
statute. See Headquarters Ruling (HQ) H112725 dated October 6, 2010. 
These provisions are implemented in the CBP Regulations at 19 CFR 
Sec.  102.21. Section 3592 has been described as Congress's 
expression of substantial transformation as it relates to textile 
products. Therefore, country of origin of the surgical face mask for 
government procurement purposes will be determined under the textile 
rules of origin.
    As the finished surgical face mask is produced by processing in 
more than one country, its origin cannot be determined by 
application of 19 CFR Sec.  102.21(c)(1), wholly obtained or 
produced rule, and resort must be made to 19 CFR 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:
    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:

6307.90 The country of origin of a good classifiable under 
subheading 6307.90 is the country, territory, or insular possession 
in which the fabric comprising the good was formed by a fabric-
making process.

    As you have indicated, while most of the fabric used in 
producing the surgical face mask is made in Turkey, the melt-blown 
polypropylene fabric used in one of the filter linings of the 
surgical mask is made in the United States. Consequently, there is 
more than one country involved in the fabric-making process, and 
thus 19 CFR Sec.  102.21(c)(2) is inapplicable.
    19 CFR Sec.  102.21(c)(3) states in pertinent part,

    Where the country of origin of a textile or apparel cannot be 
determined under paragraph (c)(1) or (2) of this section:
    (ii) Except for goods of * * * subheading * * * 6307.90 * * * if 
the good was not knit to shape and the good was wholly assembled in 
a single country, territory, or insular possession, the country of 
origin of the good is the country, territory, or insular possession 
in which the good was wholly assembled.

    As the subject merchandise is not knit to shape, and is 
classified in heading 6307.90, HTSUS, section 102.21(c)(3) is also 
inapplicable.
    Section 102.21(c)(4) states, ``Where the country of origin of a 
textile or apparel product cannot be determined under paragraph 
(c)(1), (2) or (3) of this section, the country of origin of the 
good is the single country, territory or insular possession in which 
the most important assembly or manufacturing process occurred''.
    In this case, there are two basic processes involved in 
producing the finished good. The first process is the manufacture of 
the surgical face mask in Turkey from the various non-woven textile 
fabrics. The second process is the attachment of the protective eye-
shield to the surgical face mask using ultrasonic bonding which 
occurs in the United States. We believe of these two processes that 
the more important one is the manufacturing process of the surgical 
face mask from the various fabrics in Turkey. The surgical face mask 
is the more significant part of the completed item because even 
without the protective eye-shield, the surgical face mask can still 
be worn across the face and be used when performing surgical 
procedures. On the other hand, the protective eye-shield must be 
attached to the surgical mask; otherwise, it is completely useless. 
The assembly of eye-shield to the surgical mask constitutes only an 
enhancement to the surgical face mask, but it does not change the 
fundamental nature or the basic use of the product. In addition, the 
manufacture of the surgical facial mask from the various fabrics 
seems to be a more complex operation then the relatively simple 
assembly operation of using an ultrasonic bonding process to attach 
the protective eye-shield to the surgical face mask. Consequently, 
we conclude that the manufacture of the surgical face mask from 
various non-woven fabrics occurring in

[[Page 63944]]

Turkey is the most important process involved in producing the 
finished product. Therefore, we find in accordance with 19 CFR Sec.  
102.21(c)(4), the country of origin of the surgical face mask with a 
protective eye-shield for purposes of government procurement is 
Turkey.

HOLDING:

    Based on the facts and analysis set forth above, the finished 
surgical face mask with a protective eye-shield is a product of 
Turkey 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 the final determination may 
request, pursuant to 19 CFR Sec.  177.31, that CBP reexamine the 
matter anew and issue a new final determination. 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,

Sandra L. Bell,
Executive Director, Office of Regulations and Rulings, Office of 
International Trade.
[FR Doc. 2011-26550 Filed 10-13-11; 8:45 am]
BILLING CODE 9111-14-P