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NY L83635




April 8, 2005

MAR-2 RR:NC:N1:106 L83635

CATEGORY: MARKING

Mr. David Allan
FOCUS Business Solutions
2674 West Jefferson, Suite 100
Trenton, MI 48183

RE: THE COUNTRY OF ORIGIN MARKING OF AUTOMOTIVE ENGINE PISTONS; ARTICLE 509

Dear Mr. Allan:

This is in response to your letter dated March 23, 2005, on behalf of JE Pistons, requesting a ruling on the appropriate country of origin marking for imported automotive engine pistons. A sample was not submitted with your letter for review. However, photographs were provided.

In your correspondence, you inquire as to the eligibility as originating goods under the North American Free Trade Agreement (NAFTA) of certain pistons for automotive spark-ignition internal combustion piston engines processed in Mexico from forgings of U.S. origin. You also inquire as to the proper country of origin marking requirements for the imported pistons.

The facts for this request as related by you are as follows. The product is aluminum pistons forgings for spark-ignition automotive engines. The forgings are produced in the United States. The forgings possess the shape of a piston, are clearly recognizable as pistons and can only be processed into finished pistons.

You do not describe the further working that will be performed in Mexico but it appears to essentially involve machining operations to bring the surfaces into tolerances required for finished pistons. It appears from the supplied photographs that the finished pistons are produced by additional turning, milling, drilling and heat treatment operations.

You maintain that on the facts presented the forgings entering Mexico from the U. S. will be classifiable as unfinished pistons in subheading 8409.91.5080, Harmonized Tariff schedule of the United States (HTS) and that upon importation into the United States from Mexico, the finished pistons will be classifiable in the same provision. We agree with your conclusion in this regard. The unfinished piston forging has the essential character of the completed piston and both would be classified in the same provision, that is, there is no tariff shift involved.

The marking statute, section 304, Tariff Act of 1930, as amended (19 U.S.C. 1304), provides that, unless excepted, every article of foreign origin (or its container) 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 and exceptions of 19 U.S.C. 1304.

Section 134.1(b), Customs Regulations (19 CFR 134.1(b)), defines "country of origin" as:

[t]he 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" within the meaning of this part; however for a good of a NAFTA country, the NAFTA Marking Rules will determine the country of origin.

Section 134.1(j), Customs Regulations (19 CFR 134.1(j)), provides that the "NAFTA Marking Rules" are the rules promulgated for purposes of determining whether a good is a good of a NAFTA country. 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 U.S., as determined under the NAFTA Marking Rules set out at 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 marking purposes. 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.

In this case, the applicable rule is 19 CFR 102.11(a)(3). The finished pistons are classifiable under subheading 8409.91.50, HTSUS. The applicable change in tariff classification is set out in section 102.20(o), Section XVI, Chapters 84 through 85, and provides:

8409.91 A change to subheading 8409.91...from any other heading.

The piston forgings from the U. S. are classifiable in subheading 8409.91.50, HTS. Therefore, the pistons imported into the United States from Mexico will not undergo the requisite tariff shift, and 19 CFR 102.11(b) of the hierarchical rules must be applied. This paragraph provides in pertinent part as follows:

Except for a good that is specifically described in the Harmonized System as a set, or is classified as a set pursuant to General Rule of Interpretation 3, where the country of origin cannot be determined under paragraph (a), the country of origin of the good:

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

When determining the essential character of a good under 19 CFR 102.11, 19 CFR 102.18(b)(1) provides that only domestic and foreign materials that are classified in a tariff provision from which a change is not allowed shall be taken into consideration. Section 102.18(b)(1)(iii), Customs Regulations (19 CFR 102.18(b)(1)(iii)), provides that if there is only one material that is classified in a tariff provision from which a change in tariff classification is not allowed, then that material will represent the single material that imparts the essential character to the good under 19 CFR 102.11.

Pursuant to 19 CFR 102.18(b)(1)(iii), the single material that imparts the essential character to a finished piston is the forging. Accordingly, the country of origin of the finished piston is the country of origin of the forgings, which is the United States. Therefore, because the marking requirements of 19 U.S.C. 1304 apply only to articles of foreign origin, the finished pistons imported into the United States from Mexico are not subject to the marking statute and need not be marked with the country of origin.

You also asked what the origin of the finished product would be for duty purposes. Although the country of origin for the finished pistons is not Mexico but the United States the NAFTA preference override of 19 CFR102.19 (b), provides that:

If, under any other provision of this part, the country of origin of a good which is originating within the meaning of Part 181.1(q) is determined to be the United States and that good has been exported from, and returned to, the United States after having been advanced in value or improved in condition in another NAFTA country, the country of origin of such good for Customs duty purposes is the last NAFTA country in which that good was advanced in value or improved in condition before its return to the United States.

Accordingly, the piston forgings of U. S. origin, after having been improved in condition in Mexico and then exported from Mexico to the U. S., will be eligible for preferential duty treatment under the NAFTA, as if they were goods of Mexican origin.

Lastly, you raise a country of origin marking issue concerning the U.S.-origin pistons after they have been returned to the United States in unmarked retail boxes for subsequent packaging in the United States with wrist pins, clips and optional piston rings to complete each piston set for sale in the United States. The country of origin of the other components to be added may or may not be U.S. originating. Since the activity you describe occurs after importation and there is no importation of the piston “kit”, there is no country-of-origin issue involved and the Bureau of Customs and Border Protection has no administrative oversight in this matter. Questions regarding the use of the phrase, “Made in the USA” and similar claims of U. S. origin are within the jurisdiction of the Federal Trade Commission; consequently, any inquiries regarding its use should be directed to that agency at the following address: Federal Trade commission, Division of Enforcement, 6th and Pennsylvania Avenue, N.W., Washington, D.C. 20508. It should be noted in this regard that any goods of foreign origin that may be imported to be packaged with American-origin goods should be legally marked following the strictures of 19 U.S.C 1304.

This ruling is being issued under the provisions of Part 181 of the Customs Regulations (19 CFR Part 181).

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Patrick Wholey at 646-733-3013.

Sincerely,

Robert B. Swierupski
Director,

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