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HQ 555183


February 15, 1989

CLA-2 CO:R:C:V 555183 GRV

CATEGORY: CLASSIFICATION

TARIFF NO.: 9801.00.10, HTSUS (formerly 800.00, TSUS)

Leonard L. Rosenberg, Esq.
Sandler, Travis & Rosenberg, P.A.
Rivergate Plaza
444 Brickell Avenue
Miama, Florida 33131-2470

RE: Applicability of duty exemption under HTSUS subheading 9801.00.10 to dental floss products packaged in the Dominican Republic

Dear Mr. Rosenberg:

This is in response to your letter of November 18, 1988, on behalf of Johnson & Johnson Dental Care Company, Inc., requesting a ruling on the applicability of subheading 9801.00.10, Harmo- nized Tariff Schedule of the United States (HTSUS) (formerly item 800.00, Tariff Schedules of the United States (TSUS)), to four dental floss products to be packaged in the Dominican Republic. You also inquire as to the country of origin marking requirements applicable to such packaged products. Samples of each product to be imported were submitted.

FACTS:

You state that dental floss and packaging materials of U.S. origin will be sent to the Dominican Republic for packaging oper- ations. Prior to export, the dental floss is fully prepared and variously wound on plastic cores to prescribed yardages. The packaging materials vary according to the markets targeted, which are described as (1) professional refills; (2) professional sam- ples; (3) domestic volume; and (4) international bulk.

In the case of professional refills, the packaging materi- als consist of patty paper, which is manually wrapped around the floss, and cardboard boxes, into which the floss refill is in- serted. In the case of the other three floss products, the pack- aging materials are plastic dispensers of various sizes, which consist of the outside dispenser shell, a plastic insert holder and a metal cutter attached to the insert holder. The floss- wound core is inserted into the outside dispenser shell and the end of the floss is projected through the insert guide hole in the plastic insert holder, opposite the metal cutter which is attached. The company name and a general description of the floss type, flavor and length are then machine-printed on the
plastic dispensers.

Following the initial packaging operations, the various dental floss products are bulk-packaged in cardboard boxes. Pro- fessional refill products are placed in outer cardboard boxes which show the company name, U.S. business address and product information. The professional samples are placed in plastic bags, which in turn are put into cartons. The international bulk products are also packed in cartons. Both the professional sam- ples and international bulk cartons are unmarked except for pro- duct code number, as they will ultimately be reshipped to another country and repackaged in blister packs. Further, all three of these products will be shipped to a company distribution center. The fourth product--designated domestic volume--is placed in car- tons and shipped to Puerto Rico where they are placed in blister packs printed with the company name and U.S. address.

You also inquire as to whether the floss dispensers may be marked "Made in USA" and whether these products are exempt from country of origin marking requirements.

ISSUE:

Whether the U.S. products to be exported (dental floss and packaging materials) will qualify for the duty exemption avail- able under HTSUS subheading 9801.00.10 (TSUS item 800.00) when returned to the U.S.

LAW & ANALYSIS:

Effective January 1, 1989, the HTSUS superseded and re- placed the TSUS. TSUS item 800.00 was carried over into the HTSUS without change as subheading 9801.00.10. HTSUS subheading 9801.00.10 provides for the 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.

In Upjohn Co. v. United States, 623 F.Supp. 1281 (CIT 1985), the U.S. Court of International Trade stated that whether merchandise is classifiable under TSUS item 800.00 depends upon whether the imported product is a product of the U.S., and if so, whether the product was advanced in value or improved in condi- tion while abroad.

In this case, the samples submitted evidence the fact that while abroad, the U.S. dental floss products are not advanced in value or improved in condition by any means. Prior to export to the Dominican Republic, the dental floss articles are fully pre- pared products, which are variously wound on plastic cores. In the Dominican Republic, the products are merely wrapped in patty paper and inserted into a cardboard box or inserted into a plas- tic dispenser, with the end of the floss projected through an
insert guide post. Accordingly, as no aspect of the foreign packaging operation effects an alteration or change in the dental floss products themselves (see, United States v. John V. Carr & Son, Inc., 69 Cust.Ct. 78, C.D. 4377, 347 F.Supp. 1390, 1400 (1972), aff'd, 61 CCPA 52, C.A.D. 1118, 496 F.2d 1225 (1974)), the dental floss products will be eligible for the duty exemption under HTSUS subheading 9801.00.10.

Moreover, the cardboard boxes and various plastic dispens- ers in this case are entitled to duty-free return, as they have not been advanced in value or improved in condition, as provided under HTSUS subheading 9801.00.10. Also, we have stated that we find no evidence that in enacting the HTSUS, Congress intended to alter the duty-free treatment previously accorded to American- made containers under the TSUS. See, Headquarters Ruling Letter 731420 (November 18, 1988). Further, the printing of the company name and a description of the floss type, flavor and length on the dispensers will not preclude them from receiving duty-free treatment under this tariff provision. See, Headquarters Ruling Letter 071449 (October 17, 1983). Accordingly, the packaging materials involved in this case will be allowed duty-free treat- ment when returned with their contents.

With regard to your request that Customs rule it permissi- ble to mark the packaged dental floss products, "Made in the U.S.A.," while products of the U.S. that are exported and re- turned are excepted from country of origin marking requirements pursuant to 19 CFR 134.32(m), a determination as to whether the packaged dental floss products may be marked "Made in the U.S.A." is within the province of the Federal Trade Commission. We rec- ommend that you contact that agency at 6th and Pennsylvania Avenues, N.W., Washington, D.C. 20508, before you undertake to mark your packaged products.

HOLDING:

On the basis of the information and sample materials sub- mitted, as the U.S. dental floss and packaging materials will not be advanced in value or improved in condition abroad as a result of the packaging operation, the dental floss and their various containers will qualify for the duty exemption under HTSUS sub- heading 9801.00.10.

Sincerely,

John Durant, Director

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