HQ 0556356 - "Product of the U.S." requirement under U.S. Note 2(b), subchapter II, Chapter 98, HTSUSA; substantial transformation; processing of certain plastics material in the U.S. - United States International Trade Commision Rulings

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HQ 556356

February 24, 1992
CLA-2 CO:R:C:S 556356 SER

CATEGORY: CLASSIFICATION

Stephen M. Zelman, Esq.
271 Madison Avenue
New York, NY 10016

RE: "Product of the U.S." requirement under U.S. Note 2(b), subchapter II, Chapter 98, HTSUSA; substantial transformation; processing of certain plastics material in the U.S.

Dear Mr. Zelman:

This is in reference to your letter of October 25, 1991, on behalf of Carter Footwear, Inc. (Carter), requesting a ruling on the "product of the U.S." requirement under U.S. Note 2(b), subchapter II, Chapter 98 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA), relating to certain plastics material known as "dry blend".

FACTS:

Carter produces dry blend, which is used in the manufacture of the soles of shoes, in the U.S. The process involves the blending of 10 different ingredients (e.g. synthetic rubbers, plastics, anti-oxidants, pigments, and chemical compounds), and requires precise quantity and temperature controls. Nine of the ingredients, comprising approximately 84% by weight of the dry blend, are of U.S. origin. The remaining ingredient, known as 411X, comprises approximately 16% of the dry blend and is of foreign origin. It is also used in the manufacture of adhesives, caulking compounds, and as an asphalt modifier.

After the dry blend is produced in the U.S., it is shipped to the Dominican Republic where it is extruded into a mold to create soles for footwear.

ISSUE:

Whether the operations performed in the U.S. in the production of the dry blend from U.S. and foreign-origin materials are sufficient to transform the foreign materials into a "product of the U.S." for purposes of U.S. Note 2(b), subchapter II, Chapter 98, HTSUSA.n-2-

LAW AND ANALYSIS:

Section 222 of the Customs and Trade Act of 1990 (P.L. 101- 382) amended U.S. Note 2, subchapter II, Chapter 98, HTSUSA, ("Note 2(b)") to provide for duty-free treatment of articles other than certain specified products, which are assembled or processed in a Caribbean Basin Initiative beneficiary country (BC) wholly of fabricated components or ingredients (except water) of U.S. origin.

Specifically, Note 2(b) provides as follows:

(b) No article (except a textile article, apparel article, or petroleum, or any product derived from petroleum, provided for in heading 2709 or 2710) may be treated as a foreign article, or as subject to duty, if-

(i) the article is--

(A) assembled or processed in whole of fabricated components that are a product of the United States, or

(B) processed in whole of ingredients (other than water) that are a product of the United
States, in a beneficiary country; and

(ii) neither the fabricated components, materials or ingredients, after exportation from the United States, nor the article itself, before importation in the United States, enters the commerce of any foreign country other than a beneficiary country.

As used in this paragraph, the term "beneficiary country" means a country listed in General Note 3(c)(v)(A), HTSUSA.

To qualify for Note 2(b) duty-free treatment, an eligible article must be assembled or processed in a BC entirely of components or ingredients that are a "product of the U.S." An article manufactured within the Customs Territory of the U.S. is considered a product of the U.S. Foreign-origin articles or materials may become products of the U.S. if they undergo a process of manufacture in the U.S. which results in a substantial transformation. See sections 10.12(e) and 10.14(b), Customs Regulations (19 CFR 10.12(e) and 10.14(b)). The test for determining whether a substantial transformation occurs is whether an article emerges from a process with a new name, character, or use different from that possessed by the article prior to processing. Texas Instruments, Inc. v. U.S., 69 CCPA 152, 681 F.2d 778, 782 (1982).

Based on the information provided, it is our opinion that the blending of the various materials in the U.S. through the operations of controlled heating and mixing, substantially transforms the materials into an article (the dry blend) which emerges with a new name, character and use.

In determining if an article emerges with a new character or use, Customs and the courts have examined several factors. In Headquarters Ruling Letter (HRL) 555247 dated January 11, 1990, Customs examined whether processing changed an article which was capable of multiple uses to one with a more limited use. In the instant case, the foreign ingredient, upon importation into the U.S., is stated to be capable of use in the production of caulking compounds, adhesives, asphalt, as well as for use in the production of the dry blend. After the blending operation, the foreign ingredient's only use as part of the dry blend is ultimately in the manufacture of soles for shoes. Another factor which indicates a substantial transformation is whether the materials, in the process of manufacture, lose their identity and become an integral part of a new article. Belcrest Linens v. U.S., 573 F.Supp. 1149 (CIT 1983), 741 F.2d 1368, 1373 (Fed.Cir. 1984). The foreign material, 411X, clearly loses its individual identity when combined with the other ingredients and it clearly becomes an integral part of the dry blend.

HOlDING:

The foreign ingredient, 411X, is substantially transformed during the blending process in the U.S., and, therefore, the dry blend is considered to be a "product of the U.S." for purposes on U.S. Note 2(b), subchapter II, Chapter 98, HTSUSA.

Sincerely,

John Durant, Director

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