MAR-2 RR:TC:SM 560394 JML

Mr. Lai Ki Mok, P.Eng
Technical Manager
Household Laundry Products Inc.
5070 Benson Drive
Burlington, Ontario
Canada L7L 5N6

RE: Country of origin determination for laundry additive powder; 19 U.S.C. 1304; 19 CFR Part 102.

Dear Mr. Mok:

This is in response to your letter of February 19, 1997, requesting a binding ruling regarding the country of origin marking requirements for United States ("U.S.") origin laundry additive powder exported to Canada to be packaged for retail sale.

FACTS:

The original ruling request was initiated on behalf of North American Detergents Inc., which is no longer in business. Instead, through a letter dated June 24, 1997, you informed our office that a different company, Household Laundry Products Inc., is now pursuing the request.

The product at issue is a laundry additive powder put up for retail sale in small cartons. You indicate that the powder and retail packaging are of U.S. origin. Currently, the filling or packaging operations are performed in the U.S. The outside of the retail packaging displays the name of the U.S. manufacturer, its U.S. mailing address, and "Made in the U.S.A."

The powder in question is of the bleach variety, and consists of 5%-25% sodium perborate (bleaching agent), less than 2% subtilisin protease (enzyme), less than 1% fragrance and coolant, with the balance being sodium carbonate, (ash-like filler). Before packaging, Customs notes that the powder would be classifiable under subheading 3402.90.50, Harmonized Tariff Schedule of the United States ("HTSUS"), (Organic surface-active agents (other than soap); surface-active preparations, washing preparations) and cleaning preparations, whether or not containing soap, other than those of heading 3401: Other: Other: cleaning preparations). After packaging for retail sale, the product is classifiable in subheading 3402.20.50, HTSUS ( Organic surface-active agents (other than soap); surface-active preparations, washing preparations) and cleaning preparations, whether or not containing soap, other than those of heading 3401: Other: Preparations put up for retail sale: Containing any aromatic or modified aromatic surface-active agent: Other).

As a change in the production process, your company intends to export the U.S. origin components of the product -- powder and cartons -- into Canada where it will be packaged into the cartons for retail sale with no additions or alterations. The packaged powder will then be exported to the U.S. for market.

ISSUE:

What are the country of origin marking requirements for the powder which is put up for retail sale?

LAW AND ANALYSIS:

304 of the 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 requirements and exceptions as provided for in 19 U.S.C. 1304.

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

The country of manufacture, production, or growth of any article of foreign origin entering the United States. 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. (Emphasis added)

Section 134.1(j), Customs Regulations (19 CFR 134.1(j)), provides that the "NAFTA Marking Rules" are the rules promulgated for the purposes of determining whether a good is a good of a NAFTA country. Section 134.1(g), Customs Regulations 19 CFR 134.1(g)), defines a "good of a NAFTA country" 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. See 19 CFR 134.1(g). Section 102.11, Customs Regulations (19 CFR 102), articulates the relevant test for determining whether a good is a good of a NAFTA country for marking purposes. Specifically, section 102.11(a), Customs Regulations (19 CFR 102.11(a)), 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 102.20 and satisfies any other applicable requirements of that section, and all other applicable requirements of these rules are satisfied.

Since the powder will be packaged in Canada from all U.S. origin components, it cannot be considered wholly obtained or produced, or produced exclusively from domestic materials. Accordingly, paragraph (a)(3) of section 102.11 is the applicable rule that must be applied to determine the country of origin of the product. Under the present scenario, there are only two foreign materials incorporated into the finished product -- the powder itself and the carton packaging. Section 102.15, Customs Regulations (19 CFR 102.15) however, states that packaging materials and containers in which a good is packaged for retail sale that are classified with the product are to be disregarded when determining if a good undergoes an applicable change in tariff classification under the section. Thus, the laundry additive powder is the only material to be considered. Customs notes that the laundry additive powder, before packaging, is classifiable under subheading 3402.90.5030, HTSUS. The packaged laundry additive powder put up for retail sale is classifiable in subheading 3402.20.5000. The applicable change in tariff classification set out in section 102.20(b), Customs Regulations (19 CFR 102.20(b)), Section VI, Chapters 28 through 38 is:

3402.12-3402.20 ...A change to heading 3402.11 through 3402.20 from any other subheading, including another subheading within that group.

Because the unpackaged and packaged powder are classifiable under different subheadings, the requisite tariff classification change is met in this case. However, section 102.17(c), Customs Regulations (19 CFR 102.17(c)), states that a foreign material will not be considered to have undergone a change in tariff classification specified by section 102.20, Customs Regulations, by reason of simple packing, repacking or retail packaging without more than minor processing. Because the Canadian operations consist only of packaging the powder for retail sale, the operation of section 102.17(c), Customs Regulations, precludes the powder from meeting the specified change in tariff classification. In these circumstances, section 102.11(b), Customs Regulations (19 CFR 102.11(b)), provides that:

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) Is the country or countries of origin of the single material that imparts the essential character of the good....

Section 102.18(b)(1), Customs Regulations (19 CFR 102.18(b)), states:

For purposes of identifying the material that imparts the essential character to a good under 102.11, the only materials that shall be taken into consideration are those domestic or foreign materials that are classified in a tariff provision from which a change in tariff classification is not allowed under the 102.20 specific rule or other requirements applicable to the good.

In this present case, as there is only one material to be considered -- the laundry additive powder -- which does not meet the applicable change in tariff classification, we turn to section 102.18(b)(1)(iii) which states:

If there is only one material that is classified in a tariff provision from which a change in tariff classification is not allowed under 102.20 specific rule or other requirements applicable to the good, then that material will represent the single material that imparts the essential character to the good under 102.11. Therefore, the material that imparts the essential character is clearly the U.S. origin laundry additive powder. Customs therefore determines that the country of origin of the laundry additive powder put up for retail sale, for purposes of the marking requirements under 19 U.S.C. 1304, is the U.S. The product is not subject to the provisions of 19 U.S.C. 1304 because it is not considered an "article(s) of foreign origin." Accordingly, the laundry additive powder put up for retail sale does not require country of origin marking upon importation into the U.S.

With regard to the appropriateness of the "Made in the U.S.A." claim appearing on the retail carton of the packaged powder, the Federal Trade Commission ("FTC") has jurisdiction over such matters. Any questions or inquiries regarding such claims should be directed to that office.

HOLDING:

Based upon the information provided, Customs is of the opinion that the laundry additive powder put up for sale in retail cartons after having been packaged in Canada, is not an article of foreign origin for purposes of 19 U.S.C. 1304, and therefore is excepted from country of origin marking upon importation into the U.S.

A copy of this ruling letter should be attached to the entry documents at the time the merchandise is entered. If the documents have been filed without a copy, this ruling letter should be brought to the attention of the Customs officer handling the transaction.


Sincerely,


John Durant,
Director

Tariff Classification Appeals Division