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HQ H235506
January 14, 2013
CLA–2 OT:RR:CTF:TCM H235506 AMM
CATEGORY: Classification
Mr. Jason P. Wapiennik Great Lakes Customs Law 32437 Five Mile Road Livonia, MI 48154
RE:     Ruling Request; Classification and Entry Procedures for Human Remains
Dear Mr. Wapiennik:

This is in response to your ruling request, dated August 29, 2012, filed on behalf of International Biological, Inc. (IBI), regarding the classification and entry procedures for the importation of certain human remains, under the Harmonized Tariff Schedule of the United States (HTSUS).

FACTS:

     You intend to import “heads, heads with necks, torsos, legs, arms, extremities, hips, lumbar spine, and sections thereof, taken from body donors”. The remains are exported from the United States to various other countries for medical analysis at medical programs, then later returned to the U.S. ultimately for cremation or other final disposition. IBI takes possession of the remains through domestic willed body donation centers that make acquisitions directly from U.S. donors. The use of the human remains is governed by the donor’s wishes in the donor agreement.
ISSUE:

     Whether the instant human remains are exempt from application of the tariff schedule by operation of General Note 3(e)(i), HTSUS?
LAW AND ANALYSIS:

     General Note (GN) 1, HTSUS, states, in pertinent part: “All goods provided for in this schedule and imported into the customs territory of the United States from outside thereof, and all vessel equipments, parts, materials and repairs covered by the provisions of subchapter XVIII to chapter 98 of this schedule, are subject to duty or exempt therefrom as prescribed in general notes 3 through 29, inclusive.”
     GN 3, HTSUS, states, in pertinent part:

(e)     Exemptions. For the purposes of general note 1--
(i)      corpses, together with their coffins and accompanying flowers, *          *          * are not goods subject to the provisions of the tariff schedule. No exportation referred to in subdivision (e) may be treated as satisfying any requirement for exportation in order to receive a benefit from, or meet an obligation to, the United States as a result of such exportation.

     Section 1401(c), United States Code, Chapter 19 (19 U.S.C. §1401(c)), states, in pertinent part: “The word ‘merchandise’ means goods, wares, and chattels of every description and includes merchandise the importation of which is prohibited, and monetary instruments as defined in section 5312 of title 31, United States Code.”
     Section 141.4, Code of Federal Regulations, Chapter 19 (19 C.F.R. §141.4) states, in pertinent part:
(a)      General. All merchandise imported into the United States is required to be entered, unless specifically excepted.

(b)      Exceptions. The following are the exceptions to the general rule:

(1)      The exemptions listed in General Note 3(e) to the Harmonized Tariff Schedule of the United States (HTSUS).

*          *          *
     You assert that the human remains at issue are exempt from classification and entry because they are not “goods.” All goods and merchandise imported to the United States must be entered, unless they are specifically excepted. See GN 1, HTSUS; 19 C.F.R. §141.4(a). However, for the purposes of GN 1, HTSUS, corpses, together with their coffins and accompanying flowers, are not goods subject to the provisions of the tariff schedule. See GN 3(e)(i), HTSUS; 19 C.F.R. §141.4(b)(1). You assert that GN 3(e)(i), HTSUS, applies to the human remains at issue, and therefore, entry is not required. You point to Headquarters Ruling Letter (HQ) 967547, dated February 16, 2005, HQ 958803, dated August 27, 1996, and New York Ruling Letter (NY) I82481, dated June 11, 2002, in support of your position.

     United States law has long held that there can be no commercial property in a dead body. See, e.g., Dougherty v. Mercantile-Safe Deposit & Trust Co., 282 Md. 617, 620 FN2 (Md. 1978); Kuzenski, Property in Dead Bodies, 9 Marq. L. Rev. 17 (1924); Larson v. Chase, 407 Minn. 307, 310 (Minn. 1891); In re Wong Yung Quy, 2 F. 624, 631 (Circ. Court, Dist. Cal. 1880). This rule is based on the ancient English rule that a corpse is not property, and that the body after burial is nullius in bonis. See Percival Jackson, The Law of Cadavers and of Burial and Burial Places, (2nd Ed. 1950) at 127; 3 Edward Coke 203 (1644); Hayne’s Case, 12 Coke 113, 77 Eng. Rep. 1389 (1614).

     However, the United States recognizes the right to a decent burial, which is a right that accrues in one’s lifetime, and is exercisable only after death. See The Law of Dead Bodies: Impeding Medical Progress, 19 Ohio St. L.J. 455, 456 (1958); The Law of Cadavers, at 31; Litteral v. Litteral, 131 Mo. App. 306, 311 (Ct. of App. of Mo. 1908). This right has been found to create a correlative duty in the survivors to properly care for and bury the body. See The Law of Cadavers, at 32; Litteral, at 311; Larson, at 309-310. Specifically, Litteral states:

The imposition of the duty to bury the dead carries with it the conferring on the person charged therewith of such rights as may be necessary to a proper performance. In the sense in which the word “property” ordinarily is used, one whose duty it becomes to bury a deceased person has no rights of ownership over the corpse. But in the broader meaning of the term, he has what has been called a quasi property right which entitles him to the possession and control of the body for the single purpose of decent burial.
Litteral, at 311.

     United States law recognizes that a person or entity that possesses the “sacred trust” of a decent burial is entitled to possession in such a manner as not to delay, impede, or prevent interment. See The Law of Cadavers, at 142-143. “[T]he custodian of [the body] has a legal right to its possession for the purposes of preservation and burial, and that any interference with that right, by mutilating or otherwise disturbing the body, is an actionable wrong.” Larson, at 310. This also includes the right of possession of parts of bodies removed by surgical operation during a person’s lifetime, and by statute the laws providing for burial are applicable to parts of dead bodies so separated. See The Law of Cadavers, at 167; Matter of Wnuk, 200 App. Div. 731 (Sup. Ct. of NY, App. Div., 4th Dept. 1922).

     In addition to the right of a decent burial, the United States also recognizes a person’s right to donate their body to science. The Uniform Anatomical Gift Act (UAGA) of 1968 is a model code adopted by statute in all 50 states and the District of Columbia. Section 2 of the Act defines the class of persons who may execute an anatomical gift. See UAGA (1968), §2. This class includes any person of sound mind, of at least 18 years of age, and any other person authorized or under obligation to dispose of the body. See UAGA (1968), §§2(a) and 2(b)(6). Section 3 of the Act specifies that an anatomical gift may be made for the purposes of medical or dental education, research, advancement of medical or dental science, therapy, or transplantation. See UAGA (1968), §3. Later revisions of the UAGA provided more clearly for disposition of donated body parts which are not used for the specified purposes, but not all jurisdictions have adopted those revisions. See UAGA (2006), §11(i).

     The text of GN 3(e)(i), HTSUS, has remained unchanged since it was adopted, although it has been renumbered. See GN 4(a), HTSUS (1989). This text was also included in the original Tariff Schedule of the United States (TSUS), adopted in 1963. See General Headnote 5(a), TSUS (1963); 28 Fed. Reg. 8605, 8626. In the Tariff Classification Study published on January 2, 1964, in connection with the adoption of the TSUS, the U.S. Tariff Commission noted that “General headnote 5 sets forth certain intangibles which, under various established customs practices, are not regarded as articles subject to treatment under the tariff schedules.” See Tariff Classification Study, Vol. 1, C.I.E. 1/64, page 18. The Study indicates that the source of law for this headnote is simply “Practice.” Id., at Appendix C, page 70. Prior to the adoption of the TSUS, Customs regulations provided an exception for “corpses”. See T.D. 51222, dated April 19, 1945, 10 Fed. Reg. 4289; See also Section 8.15(a), Customs Regulations of 1943 (19 C.F.R., Cum. Supp., §8.15(a)), 13 Fed. Reg. 7964-65; T.D. 48365, dated June 4, 1936, 69 Treasury Decisions, U.S. Treasury Dept. (1936), at 1012-13.

     In HQ 967547, CBP considered the tariff status of embalmed cadavers imported to the United States from Mexico, on behalf of medical institutions for medical analysis. CBP determined that the term “cadaver” was defined as “a dead body, especially of a human being; corpse”, and that the term “corpse” was defined as “a dead body, usually of a human being”. See HQ 967547, citing The Random House Dictionary of the English Language (unabridged ed., 1973). CBP further determined that the two terms were synonymous, and that the embalmed cadavers under consideration were excluded from entry requirements by GN 3(e)(i), HTSUS.

     In HQ 958803, CBP modified an earlier ruling, District Director Ruling Letter (DD) 848665, dated January 30, 1990. In DD 848665, considered the classification of plastic body bags designed to transport cadavers, and found that they were classified under heading 3923, HTSUS, which provides in pertinent part for “Articles for the conveyance or packing of goods, of plastics”. In HQ 958803, CBP noted that cadavers were not considered “goods.” See GN 1 and GN 3(e)(i), HTSUS. Therefore, CBP found that classification of body bags under heading 3923 was incorrect because they were intended to convey or pack something that was not considered a good. CBP found that they were properly classified under heading 3926, HTSUS, which provides for other articles of plastic. See also NY I82481; NY 886980, dated June 24, 1993; and NY 802516, dated September 30, 1994.
     It has long been the practice of CBP to exempt corpses from classification and entry. This practice was originally intended to prevent any interference with the legal right of possession for the purposes of preservation and burial. Additionally, this practice has the effect of protecting the right of an individual to make an anatomical gift for medical research, a right created by the statutes of each of the individual States.

     We note that you do not intend to import cadavers in their entirety. Instead, they intend to import “heads, heads with necks, torsos, legs, arms, extremities, hips, lumbar spine, and sections thereof, taken from body donors[.]” The instant merchandise could be properly described as “parts of corpses.” In your ruling request, you state that “to begin quibbling about the relative portions of human remains that are imported before qualifying for the GN 3(e) classification exemption would create unnecessary and distasteful complications in determining the application of classification and entry requirements.” See Request for Ruling, dated August 29, 2012, at page 6, FN8.
     Based on the long standing practice of CBP, previous rulings such as HQ 967547 and HQ 958803, and the weight of history, we agree. The exemption was created to prevent interference with the legal right of possession for the purposes of preservation and burial. You assert that the items you intend to import are “returned to the United States for subsequent utilization and eventually for interment and often memorialization by, or under the supervision of, the donation center in accordance with the donor agreement.” See Request for Ruling, at page 4. Therefore, it is CBP’s position that the instant merchandise falls within the scope of the exemption of GN 3(e)(i), HTSUS, and as such, are not goods subject to the provisions of the tariff schedule.
     With regard to the issue of admissibility, the importation of human remains is subject to the regulations of the Department of Health and Human Services, Public Health Service, Centers for Disease Control and Prevention (CDC). It appears that, if the deceased has died of natural causes,--i.e., and not from an infectious disease—and has been embalmed, then a death certificate, in English stating the cause of death, would be sufficient for the release of the cadaver. See 42 C.F.R. §71.55. See also “Guidance for Importation of Human Remains into the United States for Interment or Subsequent Cremation,” available at <http://www.cdc.gov/quarantine/human-remains.html>. Questions regarding the applicable regulations for shipments of cadavers through the ports listed below should be addressed to:
Service Port of Detroit:

Public Health Service Centers for Disease Control and Prevention 2613 World Gateway Place Detroit Metro Airport McNamara Terminal, Bldg. 830 Detroit, MI 48242 Phone: 734-955-6197 Fax: 734-955-7790
Service Port of San Diego:

Public Health Service Centers for Disease Control and Prevention 3851 Rosecrans St., Suite #715 San Diego, CA 92110-3115 Phone: 866-638-9753 Fax: 619-692-8821
Service Ports of Boston and New York:

Public Health Service Centers for Disease Control and Prevention JFK International Airport Terminal 4, Room 219.016 2nd Floor, East Concourse Jamaica, NY 11430-1081 Phone: 617-561-5701 Fax: 718-553-1524 Service Port of Seattle:

Public Health Service Centers for Disease Control and Prevention Seattle-Tacoma International Airport c/o CBP 19339 28th Ave South, Building D Sea-Tac, WA 98188 Phone: 206-553-4519 Fax: 206-553-0855
Service Port of Miami:

Public Health Service Centers for Disease Control and Prevention CDC Miami Quarantine Station P.O. Box 260100 Miami, FL 33126 Phone: 305-526-2910 Fax: 305-869-1495
Service Port of Chicago:

Public Health Service Centers for Disease Control and Prevention O'Hare International Airport AMC O'Hare, POB 66012 Chicago, IL 60666-0012 Phone: 773-894-2960 Fax: 773-894-2970
HOLDING:

      Pursuant to General Note 3(e)(i), HTSUS, the instant human remains are exempt from entry requirements, and thus they are not subject to being classified in the HTSUS.


Sincerely,
Ieva O’Rourke, Chief Tariff Classification and Marking Branch