CLA-2 RR:TC:SM 560640 KSG
Kenneth G. Weigel, Esq.
Kirkland & Ellis
655 Fifteenth Street, N.W.
Washington, D.C. 20005
RE: 19 U.S.C. 1304; 19 CFR 134.32(m); country of origin
marking: products of the U.S. exported and returned;
NAFTA; Article 509;
Dear Mr. Weigel:
This is in response to your letter of September 5,
1997, on behalf of Bayer Corporation, in which you requested
a binding ruling for Tempo 20 WP, a chemical of U.S. origin,
which will be packaged in retail containers in Mexico. You
asked whether country of origin marking was required for
this product when it is returned to the U.S. In a fax dated
January 22, 1998, you withdrew your request for confidential
treatment.
FACTS:
The good involved in this case is Tempo 20 WP, a
chemical which is a product of your client. The good is
made from bromofluorobenzene from France, and U.S.
materials. You state that the bromofluorobenzene is
classified at subheading 2903.69.7000, of the Harmonized
Tariff Schedule of the United States ("HTSUS") and the
intermediate made in the U.S. from the bromofluorobenzene,
FPBA, is classified at subheading 2913.00.20, HTSUS. In
the U.S., the FPBA is combined with U.S. ingredients to make
the technical material for Tempo, classified at subheading
2926.90.30000, HTSUS. The Tempo 20 WP, which is classified
at subheading 3808.10.2500, HTSUS, is made in the U.S. from
the technical material and then sent to Mexico for
packaging. You state that neither the foreign ingredients
nor the intermediate are considered insecticides or
vegetable saps or extracts of Chapter 13, HTSUS.
The packaging operation in Mexico consists of
packaging bulk Tempo WP 20 into smaller retail packages.
The retail packages will be returned to the U.S. for
importation. The cartons in which the product will return
to the U.S. will be marked with the U.S. address of the
producer. For the purposes of this ruling, we assume that
your classification of the Tempo 20 WP at subheading
3808.10.2500, HTSUS, is correct.
ISSUE:
Whether the product, Tempo 20 WP, is excepted from
country of origin marking requirements?
LAW AND ANALYSIS:
Section 304 of the Tariff Act of 1930 (19 U.S.C. 1304),
provides that unless excepted, every article of foreign
origin imported into the U.S. shall be marked in a
conspicuous place as legibly, indelibly, and permanently as
the nature of the article (or its container) will permit, in
such a manner as to indicate to the ultimate purchaser in
the U.S. the English name of the country of origin of the
article.
Part 134, Customs Regulations (19 CFR Part 134),
implements the country of origin marking requirements of 19
U.S.C. 1304. Products of the U.S. exported and returned are
not subject to the requirements of 19 U.S.C. 1304. See 19
CFR 134.32(m).
A good of a NAFTA country is defined in 19 CFR 134.1(g)
as an article for which the country of origin is Canada,
Mexico, or the United States as determined under the NAFTA
Marking Rules. The NAFTA Marking Rules, defined in 19 CFR
134.1(j) as the rules promulgated for purposes of
determining whether a good is a good of a NAFTA country, are
set forth in 19 CFR Part 102.
Section 102.11, Customs Regulations (19 CFR 102.11),
sets forth the required hierarchy for determining whether a
good is a good of a NAFTA country for the purposes of
country of origin marking and determining the rate of duty
and staging category applicable to an originating good as
set out in Annex 302.2. Paragraph (a) of this section
states that the country of origin of a good is the country
in which:
(1) The good is wholly obtained or produced;
(2) The good is produced exclusively from domestic
materials; or
(3) Each foreign material incorporated in that good
undergoes an applicable change in tariff
classification set out in section 102.20 and
satisfies any other applicable requirements of that section, and all other applicable requirements of these
rules are satisfied.
"Foreign material" is defined in 19 CFR 102.1(e) as "a
material whose country of origin as determined under these
rules is not the same country
as the country in which the good is produced." Sections
102.11(a)(1) and 102.11(a)(2) do not apply to the facts
presented in this case because there is a foreign material
in the Tempo 20 WP. Since an analysis of sections
102.11(a)(1) and 102.11(a)(2) will not yield a country of
origin determination, we look to section 102.11(a)(3).
Section 102.11(a)(3) provides that the country of
origin is the country in which "each foreign material
incorporated in that good undergoes an applicable change in
tariff classification as set forth in 19 CFR 102.20...."
You state that the product, Tempo 20 WP, is classified
at subheading 3808.10.2500, HTSUS. The applicable tariff
shift rule found in section 102.20(f) provides as follows:
HTSUS Tariff Shift and/or other requirements
3808.10..... A change to subheading 3808.10 from any
other subheading, except from subheading
1302.14 or from any insecticide classified in
Chapter 28 or 29.
The bromofluorobenzene, which is not an insecticide,
does undergo the applicable tariff shift. Therefore,
pursuant to 19 CFR 102.11(a)(3), the country of origin of
the Tempo 20 WP is the country where the foreign materials
undergo the applicable tariff shift, which is the U.S.
When the Tempo 20 WP returns to the U.S. after having
been packaged in retail containers in Mexico, there is no
change in tariff classification. Since the good is not
wholly obtained or produced in a single country and the
Tempo 20 WP does not undergo the applicable change in tariff
classification in Mexico, its origin cannot be determined
pursuant to 19 CFR 102.11(a).
In accordance with 19 CFR 102.11(b), the country of
origin of the good is the country of the single material
that imparts the essential character of the good. In this
case, the Tempo 20 WP is the single material that imparts
the essential character of the good. Therefore, the country
of origin of the good remains the U.S.
Since the country of origin of the article is the U.S.,
the Tempo 20 WP would be excepted from country of origin
marking pursuant to 19 CFR 134.32(m) as a product of the
U.S. exported and returned.
HOLDING:
Pursuant to 19 CFR 102.11(b), the country of origin of
the imported Tempo 20 WP is the U.S. Therefore, it would be
excepted from country of origin marking requirements under
19 U.S.C. 1304 pursuant to 19 CFR 134.32(m).
A copy of this ruling letter should be attached to the
entry documents filed at the time this merchandise is
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