HQ 559026 - Eligibility of the Ready Brush for preferential tariff treatment and country of origin marking requirements under NAFTA; Article 509 - United States International Trade Commision Rulings

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HQ 559026

June 8, 1995

MAR-2-05 CO:R:C:S 559026 WAS

TARIFF NO.: 9603.21; 3306.10

CATEGORY: MARKING

Arthur W. Bodek, Esq.
Siegel, Mandell & Davidson, P.C.
One Astor Plaza
1515 Broadway
43rd Floor
New York, N.Y. 10036-8901

RE: Eligibility of the Ready Brush for preferential tariff treatment and country of origin marking requirements under NAFTA; Article 509

Dear Mr. Bodek:

This is in response to your letter dated February 7, 1995 on behalf of GMZ Associates, Ltd. ("GMZ"), concerning the eligibility of the "Ready Brush" for preferential tariff treatment and country of origin marking requirements under the North American Free Trade Agreement (NAFTA). A sample of the merchandise was submitted for our examination.

FACTS:

You state that GMZ is contemplating the importation of the Ready Brush which will be produced in Mexico. The Ready Brush consists of a plastic toothbrush with a mint-flavored toothpaste bonded to the nylon bristles thereof. You state that the production process in Mexico consists of feeding ordinary toothbrushes into specialized dipping/curing machinery where by means of a chemical process, a U.S.-origin toothpaste formulation is bonded to the bristles. The finished articles are then fed into an automatic bagging machine which encloses each individual Ready Brush in a sealed retail container which will be marked with the country of origin of the individual article (as well as with certain other relevant information). You claim that the toothbrushes will be purchased in bulk quantities and will correspond in all relevant commercial characteristics, such as possessing a plastic handle and nylon bristles, approximate cost, approximate length, approximate shape, approximate durability, bristle consistency, etc. In addition, you state that bonded to the nylon bristles of each toothbrush will be the identical U.S.-origin toothpaste formulation, resulting in materially indistinguishable finished articles.

In your submission, you claim that initially, each production lot of the Ready Brush will be produced in Mexico using exclusively Mexican-origin toothbrushes produced from local materials. However, you state that in the future, GMZ may use Korean-origin toothbrushes to produce the Ready Brush and that the toothbrushes of Mexican and Korean-origin will be commingled in inventory and during the bonding and bagging procedures. However, you state that, irrespective of the origin of the toothbrush, all further manufacturing steps in producing the finished Ready Brush (e.g., dipping, curing, bagging, etc.) will be performed in Mexico.

You contend that once commingled, it will be impossible to identify the origin of the underlying toothbrush used in the production of the finished articles. However, you state that records will be maintained by the producer of the Ready Brush which will reflect the respective quantities of Mexican and Korean-origin toothbrushes received into its inventory and used in the production of the finished articles.

ISSUE:

(1) Whether the Mexican-origin toothbrushes which are commingled with Korean-origin toothbrushes in Mexico and used in the production of the Ready Brush will qualify for preferential tariff treatment under the NAFTA when imported into the U.S.

(2) What are the country of origin marking requirements for the Ready Brushes?

LAW AND ANALYSIS:

General Note 12 of the Harmonized Tariff Schedule of the United States Annotated (hereinafter HTSUSA) incorporates Article 401, North American Free Trade Agreement (NAFTA), into the HTSUSA. Note 12(b) provides in pertinent part:

For the purposes of this note, goods imported into the customs territory of the United States are eligible for the tariff treatment and quantitative limitations set forth in the tariff schedule as "goods originating in the territory of a NAFTA party" only if--

(i) they are goods wholly obtained or produced entirely in the territory of Canada, Mexico and/or the United States; or

(ii) they have been transformed in the territory of Canada, Mexico and/or the United States so that--

(A) except as provided in subdivision (f) of this note, each of the non-originating materials used in the production of such goods undergoes a change in tariff classification described in subdivisions (r),(s) and (t) of this note or the rules set forth therein, or,

(B) the goods otherwise satisfy the applicable requirements of subdivisions (r), (s) and (t) where no change in tariff classification is required, and the goods satisfy all other requirements of this note; or

(iii) they are goods produced entirely in the territory of Canada, Mexico and/or the United States exclusively from originating materials.

It is clear that the Ready Brush which is produced by the bonding in Mexico of U.S.-origin toothpaste formulation to a toothbrush which is manufactured in Mexico from local materials, is considered an "originating good" within the requirements of either General Note 12(b)(i) or (iii), HTSUS.

The question is whether the Ready Brushes which are produced in Mexico using Korean-origin toothbrushes will also be considered "originating goods" under NAFTA. To become an originating good, the non-originating materials which make up the good must satisfy the tariff shift rule applicable to the finished Ready Brush which is classified under subheading 9603.21, HTSUS. The applicable General Note 12(t) rule for this good provides as follows:

A change to heading 9601 through 9605 from any other chapter.

Since the Korean-origin toothbrush is classified in the same subheading (9603.21, HTSUS) as the finished good, the tariff shift rule for the good is not met, and therefore, the good will not be considered "originating" for purposes of NAFTA. Accordingly, the Ready Brushes which are produced using Korean-origin toothbrushes will not be eligible for NAFTA preferential tariff treatment. General Note 12(g), HTSUS, provides as follows:

Fungible goods and materials. For purposes of determining whether a good is an originating good --

(I) where originating and non-originating fungible materials are used in the production of a good, the determination of whether the materials are originating need not be made through the identification of any specific fungible material, but may be determined on the basis of any of the inventory management methods set out in regulations promulgated by the Secretary of the Treasury; and

Section 7(14) and Schedule X of the Appendix to Part 181, Title 19 Code of Federal Regulations (19 CFR Part 181, Appendix) which implement Section 202(f) of the NAFTA provides as follows:

For purposes of determining whether a good is an originating good,

(a) where originating materials and non-originating materials that are fungible materials are used in the production of the good, the determination of whether the materials are originating materials may, at the choice of the producer of the good or the person from whom the producer acquired the materials, be made on the basis of any of the applicable inventory management methods set out in Schedule X.

Schedule X of the NAFTA states that the inventory management methods for determining whether fungible materials referred to in section 7(14)(a) of the Appendix are originating materials are as follows: (a) specific identification method; (b) FIFO method; (c) LIFO method; and (d) average method.

General Note 12(g) defines the term "fungible" to mean "that the particular materials or goods are interchangeable for commercial purposes and have essentially identical properties." See also 19 CFR Part 181, App. Part I, section 2(1).

In the instant case, it appears that both the toothbrushes which are produced in Mexico and the toothbrushes which are imported into Mexico from Korea are fungible materials which can be used interchangeably for commercial purposes since they possess essentially identical properties. Both the Mexican and Korean-origin toothbrushes possess a plastic handle and nylon bristles; both also have the same approximate cost, length, shape, durability, and bristle consistency. Further, you submit that both the Mexican and Korean-origin toothbrushes will be used interchangeably in production of the Ready Brush and will have the identical U.S.-origin toothpaste formulation applied to the toothbrush bristles. In addition, since the individual toothbrushes will not be marked as a product of Mexico or Korea, it will be impossible to identify the origin of the underlying toothbrushes which are used in the production of the finished good. Accordingly, based upon General Note 12(g), HTSUS, and section 202(f) of the NAFTA, as the toothbrushes are fungible materials which are mixed in inventory and are used in the production of a good, the determination of whether the materials are "originating" may be determined on the basis of one of the inventory management methods set out in 19 CFR Part 181, App. Schedule X.

In order for preferential tariff treatment to be granted under these circumstances, however, the importer's records must be sufficient to allow for verification by Customs of the respective quantity of toothbrushes which are imported from Korea and the quantity of toothbrushes which are produced in Mexico and received into its inventory, and any other information which the district director deems relevant in order to substantiate the importer's claim for tariff preference under the NAFTA (i.e., receipt, shipment and inventory records).

II. Country of Origin Marking Requirements

Section 304 of the Tariff Act of 1930, as amended (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. Congressional intent in enacting 19 U.S.C. 1304 was "that the ultimate purchaser should be able to know by an inspection of the marking on the imported goods the country of which the goods is the product. The evident purpose is to mark the goods so that at the time of purchase the ultimate purchaser may, by knowing where the goods were produced, be able to buy or refuse to buy them, if such marking should influence his will." United States v. Friedlaender & Co., 27 C.C.P.A. 297 at 302; C.A.D. 104 (1940). Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304.

The country of origin marking requirements for a "good of a NAFTA country" are also determined in accordance with Annex 311 of the North American Free Trade Agreement ("NAFTA"), as implemented by section 207 of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat. 2057) (December 8, 1993) and the interim amendments to the Customs Regulations published as T.D. 94-4 (59 Fed. Reg. 109, January 3, 1994) with Section 134.1(b) of the interim regulations, defines "country of origin" as: the country of manufacture, production, or growth of any article of foreign origin entering the U.S. Further work or material added to an article in another country must effect a substantial transformation in order to render such other country the "country of origin"; however, for a good of a NAFTA country, the NAFTA Marking Rules will determine the country of origin (emphasis added).

Section 134.1(j) of the interim regulations, provides that the "NAFTA Marking Rules" are the rules promulgated for purposes of determining whether a good is a good of a NAFTA country. Section 134.1(g) of the interim regulations, defines a "good of a NAFTA country" as an article for which the country of origin is Canada, Mexico or the United States as determined under the NAFTA Marking Rules. Section 134.45(a)(2) of the interim regulations, provides that "a good of a NAFTA country may be marked with the name of the country of origin in English, French, or Spanish."

Part 102 of the interim regulations, sets forth the "NAFTA Marking Rules" for purposes of determining whether a good is a good of a NAFTA country for marking purposes. Section 102.11 of the interim regulations, sets forth the required hierarchy for determining country of origin for marking purposes. Section 102.11(a) of the interim regulations states that "[t]he 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 requirements of these rules are satisfied."

In this case, the applicable rule is section 102.11(a)(3) of the interim regulations. "Foreign Material" is defined in section 102.1(e) of the interim regulations 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." In order to determine whether Mexico is the country of origin, we must look at those materials (Korean-origin toothbrushes and U.S.-origin toothpaste) whose country of origin is other than Mexico.

In the instant case, in regard to the country of origin of the toothbrushes which are comprised of the Korean-origin toothbrush and U.S.-origin toothpaste, as the completed Ready Brush is classified in subheading 9603.21, HTSUS, the change in tariff classification must be made in accordance with section 102.20(d), Section XX: Chapters 94 through 96 of the interim regulations, which states in part that:

A change to heading 9603 from any other heading.

Therefore, each foreign material incorporated in the Ready Brush must come from a heading other than heading 9603, HTSUS. For those Ready Brushes which are made from Mexican-origin toothbrushes and U.S.-origin toothpaste which is classified in heading 3306, HTSUS, as the toothpaste (the foreign material) undergoes the requisite tariff shift, the country of origin of these Ready Brushes is Mexico. However, with regard to the Ready Brush which consists of a Korean-origin toothbrush which is classified in heading 9603, HTSUS, and U.S.-origin toothpaste which is classified in heading 3306, HTSUS, as the toothbrushes are foreign materials which are not classified in a heading different from the Ready Brush, the change in tariff classification requirement under section 102.11(a)(3) of the interim marking rules is not satisfied.

Since the country of origin is not determined by section 102.11(a) (incorporating section 102.20) of the interim regulations, the next step in the country of origin interim regulations hierarchy is section 102.11(b). Section 102.11(b) of the interim regulations states as follows:

Except for a good that is specifically described in the Harmonized Tariff Schedule as a set, or is classified as a set pursuant to General Rule of Interpretation 2, where the country of origin cannot be determined under paragraph (a), the country of origin of the good:

(1) Is the country or countries of origin of the single material that imparts the essential character of the good, or

(2) If the material that imparts the essential character of the good is fungible, has been commingled, and direct physical identification of the origin of the commingled material is not practical, the country or countries of origin may be determined on the basis of an inventory management method provided under the Appendix to part 181 of the Customs Regulations.
"Material" is defined in section 102.1(1) of the interim regulations as "a good that is incorporated into another good as a result of production with respect to that other good, and includes parts, ingredients, subassemblies, and components."

Pursuant to section 102.18(b)(2):
for purposes of applying section 102.11, only domestic and foreign materials (including self-produced materials) that are classified in a tariff provision from which a change in tariff classification is not allowed in the rule for the good set out in section 102.20 shall be taken into consideration in determining the parts or materials that determine the essential character of the good.

Therefore, taking into consideration only those domestic and foreign materials that are classified in a tariff provision for which a change in tariff classification is not allowed in the rule for the good under section 102.20, we find that the toothbrush imparts the essential character of the good. (The U.S.-origin toothpaste undergoes the requisite change in tariff classification.) Thus, the country of origin of the Ready Brush which is produced in Mexico from a Korean-origin toothbrush will be considered a product of Korea for marking purposes.

Section 102.1(b) defines the term "commingled" to mean physically combined or mixed. Section 102.1(f) defines the term "fungible goods or fungible material" to mean goods or materials that are interchangeable for commercial purposes and whose properties are essentially identical.

However, you have stated that the importer is faced with the practical problem of determining which Ready Brushes can be marked as a product of Mexico and which can be marked as a product of Korea because the Korean and Mexican-origin toothbrushes are fungible goods which will be commingled in inventory and during the bonding and bagging operations in Mexico. The Korean and Mexican-origin toothbrushes will be identical in terms of the relevant commercial characteristics prior to the processing operations performed in Mexico and will not be marked with their country of origin. Moreover, after the processing, the toothbrushes will have the identical U.S.-origin toothpaste formulation bonded to the bristles, and each toothbrush will be emerge from the processing as materially identical in terms of the relevant commercial characteristics. Accordingly, as the Mexican and Korean-origin toothbrushes are fungible articles which are commingled during the processing in Mexico, the importer may determine the country of origin of the finished articles for country of origin marking purposes on the basis of an inventory management method as provided in the Appendix to Part 181 of the Customs Regulations.

HOLDING:

Based on the information provided, for those Ready Brushes which are made from Mexican-origin toothbrushes and U.S.-origin toothpaste, we find that they are considered an "originating good" for purposes of preferential tariff treatment and may be marked with "Mexico" as their country of origin. Moreover, the Ready Brushes which are made from Korean-origin toothbrushes and U.S.-origin toothpaste are not considered "originating good" and will not be entitled to preferential tariff treatment and may be marked to reflect "Korea" as their country of origin. However, based on the foregoing analysis, determinations as to NAFTA preferential tariff treatment and country of origin marking may be made through an application of one of the inventory management methods of accounting set out in Schedule X of the NAFTA.

A copy of this ruling 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

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