CLA-2-CO:R:C 555365 CW

Mr. S. Richard Shostak
1101 Seventeenth Street, N.W.
Washington, D.C. 20036-4704

RE: Applicability of subheading 9801.00.10, HTSUS, and country of origin marking requirements, to U.S.-made junction boxes exported to Mexico and packaged with foreign screws

Dear Mr. Shostak:

This is in response to your letter of April 14, 1989, on behalf of Assemble in Mexico, Inc., requesting a ruling on the tariff treatment and country of origin marking requirements applicable to U.S.-made junction boxes packaged abroad with foreign-made screws and returned to the U.S. We regret the delay in responding.

FACTS:

Base metal junction boxes of U.S. origin are packaged in Mexico with three foreign-made installation screws, after which the packaged merchandise is imported into the U.S. With the exception of the screws, all items (including the packaging materials) are made in the U.S. You advise that it is unlikely that any of the screws included in the packaged boxes will be used in normal installations in view of the grounding and mounting procedures usually followed. The screws make up 2.3% of the total value of the packaged product.

ISSUES:

1. Whether U.S.-made junction boxes and foreign screws, packaged together in Mexico, are entitled to free entry under subheading 9801.00.10, Harmonized Tariff Schedule of the United States (HTSUS), when imported into the U.S.

2. Whether the packaged junction boxes and screws are subject to country of origin marking requirements.

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LAW AND ANALYSIS:

1. Applicability of subheading 9801.00.10, HTSUS

Subheading 9801.00.10, HTSUS, provides for the free entry of U.S.-made products that are exported and returned without having been advanced in value or improved in condition by any process of manufacture or other means while abroad, provided the documentary requirements of section 10.1, Customs Regulations (19 CFR 10.1), are met. In United States v. John V. Carr & Sons, Inc., 69 Cust.Ct. 78, C.D. 4377, 347 F.Supp. 1390 (1972), aff'd 61 CCPA 52, C.A.D. 1118, 496 F.2d 1225 (1974), the court stated that absent some alteration or change in the item itself, the mere repackaging of the item, even for retail sale, will not preclude free entry of the merchandise under item 800.00, Tariff Schedules of the United States (TSUS) (the precursor to subheading 9801.00.10, HTSUS).

Moreover, in Superscope, Inc. v. United States, 13 CIT , 727 F.Supp. 629 (CIT 1989), the court held that certain glass panels of U.S. origin that were exported, repacked abroad with certain foreign components, and returned to the U.S. as part of unassembled audio cabinets, were entitled to free entry under item 800.00, TSUS, since the U.S. panel portion of the imported article was "not 'advanced in value or improved in condition ... while abroad,' but [was] merely repacked."

You maintain that the foreign screws and U.S. junction boxes constitute "goods put up in sets for retail sale," within the meaning of General Rule of Interpretation (GRI) 3(b), HTSUS. Since the junction box imparts the essential character to the "set", you contend that the box as well as the screws are classifiable in the HTSUS provision applicable to the box. Thus, you conclude that because the junction box is entitled to free entry under subheading 9801.00.10, HTSUS, the foreign screws also are eligible for free treatment under this tariff provision.

We disagree with your underlying premise that the screws and junction boxes constitute "goods put up in sets for retail sale." GRI 1, HTSUS, provides, in pertinent part, that:

... classification shall be determined according to the terms of the headings and any relative section or chapter notes, and, provided such headings or notes do not otherwise require, according to [GRI's 2 through 5].

The Explanatory Notes, which constitute the office interpretation of the HTSUS at the international level, state in regard to GRI 1 that the phrase "provided such headings or notes do not otherwise - 3 -

require" is "intended to make quite clear that the terms of the headings and any relative Section or Chapter Notes are paramount, i.e., they are the first consideration in determining classification."

Electrical junction boxes are specifically described in subheading 8536.90.00, HTSUS, which provides for a duty rate of 5.3% ad valorem. It is our experience that such boxes are typically sold with mounting and grounding screws and that these screws constitute an integral part of the junction box. This is true regardless of the fact that, for whatever reason, the screws may not actually be used in the box's installation. Thus, it is our opinion that the boxes, and their accompanying screws, are properly classifiable by reference to GRI 1, HTSUS, in a single subheading (8536.90.00, HTSUS) for tariff classification purposes, and that recourse to the remaining GRI's is unncessary.

Having determined that each junction box and its installation screws constitute a single tariff entity for tariff classification purposes, it remains to determine the extent to which the boxes and screws are entitled to duty-free treatment under subheading 9801.00.10, HTSUS. In view of the Carr and Superscope cases, there is no question that the junction boxes (excluding the screws) are entitled to free entry under subheading 9801.00.10, HTSUS, when returned to the U.S., since they are products of the U.S. which are merely repackaged abroad. (In Superscope, the court granted item 800.00, TSUS, treatment to the U.S. glass panels even though it recognized that the panels were part of a single tariff entity (unassembled furniture) for tariff classification purposes).

However, it is our opinion that U.S. Note 1, Chapter 98, HTSUS, and the specific language of subheading 9801.00.10, HTSUS, preclude such treatment for the three foreign-made screws. The referenced U.S. Note provides, in relevant part, that "[a]ny article which is described in any provision in this chapter is classifiable in said provision if the conditions and requirements thereof and any applicable regulations are met." (Emphasis added). The "conditions and requirements" of subheading 9801.00.10, HTSUS, are that (1) the article be a product of the U.S., and (2) it not be advanced in value or improved in condition by any means while abroad. Granting duty-free treatment under this tariff provision to the foreign screws, which do not meet these "conditions and requirements," would clearly contravene the plain meaning and intent of U.S. Note 1, Chapter 98, HTSUS, and subheading 9801.00.10, HTSUS.

Therefore, we conclude that the foreign screws are dutiable under subheading 8536.90.00, HTSUS, at the rate of 5.3% ad valorem. - 4 -

II. Applicability of country of origin marking requirements

With respect to country of origin marking, section 304, Tariff Act of 1930, as amended (19 U.S.C. 1304), requires that every article of foreign origin (or its container) imported into the U.S., subject to certain specified exceptions, shall be marked in a conspicuous place as legibly, indelibly, and permanently as the nature of the article (or 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. U.S. products exported and returned are specifically excepted from country of origin marking requirements under section 134.32(m), Customs Regulations (19 CFR 134.32(m)). In applying this section, Customs has ruled that products of the U.S. which are exported and returned are generally not subject to country of origin marking unless, prior to their return, they are substantially transformed. See Headquarters Ruling Letter 729519, dated May 18, 1988, in which this principle is restated.

In order for a substantial transformation to be found, an article having a new name, character, or use must emerge from the processing. See United States v. Gibson-Thomsen Co. Inc., 27 CCPA 267, C.A.D. 98 (1940).

For purposes of 19 U.S.C. 1304, it is clear that repackaging alone does not constitute a substantial transformation. See section 134.26, Customs Regulations (19 CFR 134.26) (imported articles which are to be repacked in the U.S. after release from Customs custody are subject to the requirements of 19 U.S.C. 1304). Thus, unless the addition of three foreign-made screws substantially transforms the U.S. junction boxes into a product of Mexico, the junction boxes are excepted from the marking requirements of 19 U.S.C. 1304 upon their return to the U.S. In view of the fact that the screws are of minor importance to the product as a whole and do not change the name, character or use of the junction box, we find that the addition of the screws does not substantially transform the junction box into a product of Mexico. Accordingly, pursuant to 19 CFR 134.32(m), the U.S. goods exported to Mexico are excepted from marking upon their return to the U.S.

Moreover, we find that the foreign-made screws are also excepted from the requirements of 19 U.S.C. 1304 because, when packaged with the U.S. junction box, the screws lose their separate identity and become an integral part of the U.S. product. What the ultimate purchaser in the U.S. is buying is a junction box kit and not individual screws. Accordingly, the package does not have to indicate the country of origin of the screws. Whether or not the packaged junction boxes may be marked with the U.S. as the country of origin is a question for the Federal Trade Commission, not Customs. - 5 -

HOLDING:

The junction boxes of U.S. origin which are merely repackaged in Mexico and returned are entitled to duty-free treatment under subheading 9801.00.10, HTSUS, upon compliance with the documentary requirements of 19 CFR 10.1. The three foreign-made screws which are imported packaged with the junction boxes are classifiable in the provision for junction boxes, subheading 8536.90.00, HTSUS, dutiable at the rate of 5.3% ad valorem.

The junction boxes and screws are excepted from country of origin marking requirements.

Sincerely,

John Durant, Director
Commercial Rulings Division