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HQ 560640




January 23, 1998

CLA-2 RR:TC:SM 560640 KSG

CATEGORY: MARKING

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

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