CLA-2 OT:RR:CTF:TCM H015361 KSH
Donald S. Stein, Esq.
Greenberg Traurig, LLP
800 Connecticut Avenue N.W.
Washington, DC 20006
RE: NAFTA country of origin and marking of oral care kitsDear Mr. Stein:
This letter is in response to your request of July 16, 2007, on behalf of your client, Avent Inc., in which you requested a binding ruling pertaining to the country of origin and marking of oral care kits. Your request has been forwarded by the National Commodity Specialist Division in New York to this office for a response. A sample of the oral care kit at issue was forwarded with your request.
The merchandise at issue is identified as the “24 HOUR ORAL CARE KIT.” The oral care kit is marketed and sold to hospitals to be used to clean the mouths of patients who are on ventilators to reduce the risk of acquiring Ventilator Associated Pneumonia. The kit is designed to be used during a 24 hour period. Each kit consists of a series of molded tubes that connect to a vacuum with a suction tip that is interchanged with each cleaning to prevent secretions from accumulating in the patient’s mouth. Included in the kit is one self cleaning covered yankauer, Y-connector and suction handle; four suction swab procedure packs including one suction swab, one applicator swab, 0.50 fl. oz. of 1.5% hydrogen peroxide oral debriding agent, 0.07 oz. mouth moisturizer; two toothbrush procedure packs including one suction toothbrush, one application swab, 0.50 fl. oz. of 0.05% antiplaque solution and 0.07 oz. mouth moisturizer and; two suction catheters. The toothbrush tip, hydrogen peroxide, mouth moistureizer and antiplaque solution are manufactured in the United States. The sponge tip, catheter tip, dentaswab, Y-adapter, suction catheter and suction swab are manufactured in Mexico. The yankauer tip and suction valve handle are manufactured in China. The product is packaged so that each tip and auxiliary cleaning elements are contained in a different blister package to avoid contamination. The separate blister packs are assembled and placed into a single kit in Mexico. Eighteen oral care kits are then packaged in a single container for export from Mexico.
Whether the oral care kits must be marked upon importation into the United States.
LAW AND ANALYSIS:
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 United States 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 an ultimate purchaser in the United States 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 markings on the imported goods the country of which the good is the product. “The evident purpose is to mark the goods so 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 (1940).
Part 134, CBP Regulations (19 C.F.R. 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304. Section 134.1(b), CBP Regulations (19 C.F.R. 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 determine the country of origin.
Section 134.1(j), CBP Regulations (19 C.F.R. 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. Section 134.1(g), CBP Regulations (19 C.F.R. 134.1(g)), 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, set forth at 19 C.F.R. Part 102.
Section 102.11(a), CBP Regulations (19 C.F.R. 102.11(a)), sets forth the required hierarchy under the NAFTA Marking Rules for determining country of origin for marking purposes. This section states that the country of origin of a good is the country in which:
The good is wholly obtained or produced;
The good is produced exclusively from domestic materials; or
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.
Section 102.1(g), CBP Regulations (19 C.F.R. 102.1(g)), defines a good wholly obtained or produced as including “A good produced in that country exclusively from goods referred to in paragraphs (g)(1) through (g)(10) of this section or from their derivatives, at any stage of production.” Because the components of the oral care kit are manufactured in the United States, China and Mexico, the oral care kit would not qualify as “a good wholly obtained or produced” in a country. Therefore, the country of origin of the oral care kits may not be determined under section 102.11(a)(1).
The next step under the hierarchy is to consider whether the country of origin may be determined according to section 102.11(a)(2). Under this section, the origin of the good may be based on the origin of the materials used to produce the good, provided the good is produced exclusively from domestic materials. Section 102.1(d), CBP Regulations (19 C.F.R. 102.1(d)), defines domestic material as “a material whose country of origin as determined under these rules is the same country as the country in which the good is produced.” Because the oral care kits are not produced exclusively from domestic materials (i.e., Mexican), the country of origin cannot be determined under section 102.11(a)(2). Analysis must continue to 19 C.F.R. 102.11(a)(3) to determine the country of origin of the oral care kits under the NAFTA Marking Rules.
Each component of the oral care kit other than the chemicals are classified in subheading 9018.39.00, HTSUS, which provides for “Instruments and appliances used in medical, surgical, dental or veterinary sciences, including scintigraphic apparatus, other electro-medical apparatus and sight-testing instruments; parts and accessories thereof: Syringes, needles, catheters, cannulae and the like; parts and accessories thereof: Other.” The chemicals and moisture packets are classified in Section VI, HTSUS, which provides for “Products of the chemical or allied industries.” At the time the oral care kits are exported from Mexico, they are classified in 9018.39.00. See NY N011052.
Pursuant to 19 C.F.R. 102.11(a)(3), the country of origin of a good is the country in which “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.” Section 102.1(e), CBP Regulations (19 C.F.R. 102.1(e)) defines “Foreign material” 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.” The applicable rule under 19 C.F.R. 102.20(q), CBP Regulations (19 C.F.R. 102.20(q)), states, in relevant part:
9018.39 A change to subheading 9018.39 from any other subheading, except from surgical tubing of subheading 4009.10 when resulting from a simple assembly.
In the case before us, only the mouth moisturizer, hydrogen peroxide and antiplaque solution will undergo the required tariff shift. Thus, as each foreign component does not undergo an applicable change in tariff classification within the requirements of section 102.20, the country of origin of the good may not be determined in accordance with this provision.
Because the country of origin cannot be determined under 19 C.F.R. 102.11(a) (incorporating section 102.20), the next step is section 102.11(b), CBP Regulations (19 C.F.R. 102.11(b)), which states, in part:
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 origin cannot be determined under paragraph (a), of this section[.]
In accordance with the holding in NY N011052, the oral care kits are classified as a set pursuant to GRI 3(c) in subheading 9018.39, HTSUS. As such the oral care kit cannot be classified in accordance with section 102.11(b). Where the article is specifically described in the Harmonized System as a set or mixture, or classified as a set, mixture, or composite good pursuant to GRI 3, 19 C.F.R. 102.11(c) is the rule which must then be applied. Under 19 C.F.R. 102.11(c), the country of origin is the country or countries of origin of all materials that merit equal consideration for determining the essential character of the good. All of the materials of the set or mixture, foreign and domestic, which merit equal consideration, must be considered.
Each component is equally important in relation to use of the oral care kit.
As such, the countries of origin for marking purposes are the United States,
China and Mexico.
You request confirmation that it would be appropriate for the port director to exempt the individual blister packs from being marked with the country of origin. You suggest that the oral care kits need not be marked with their country of origin as the ultimate purchaser of the kits will receive the kits in their shipping case. You note that although the oral care kits are sold to distributors, the packaging is designed to ensure the shipping cases are not broken apart by the distributor.
There exist certain exceptions to the marking requirements in the marking
statute. One of those exceptions can be found in section 1304(a)(3)(D). Under
section 1304(a)(3)(D) to the marking statute, an imported article is not required
to be marked with its country of origin if:The marking of a container of such article will reasonably indicate the origin of such article.19 U.S.C. § 1304(a)(3)(D).Subpart D to part 134 implements the exceptions in the marking statute.
Section 134.32(d) to subpart D lists the following exception:Articles for which the marking of the containers will reasonably indicate the origin of the articles.
19 C.F.R. § 134.32(d).
CBP has ruled in the past that products that are imported for sale to or for
use by medical facilities need not be individually marked as to their country of
origin but rather could be marked on the packages or on the outside of the
containers in which the products were packed provided the medical facility
receives the products in such properly marked packages or containers. See
generally, HQ 560266 (dated January 17, 1997). In the instant case, if the oral
care kits are sold to or provided for use by medical facilities in properly marked
packages, they may be excepted from the country of origin marking
requirements under section 304 of the Tariff Act of 1930 (19 U.S.C. § 1304
(a)(3)(D) and 19 C.F.R. § 134.32(d)).
Further, we note that there is a reference to Roswell, Georgia on the
sample kit box package. This would trigger the special marking requirements of 19 C.F.R. 134.46. Section 134.46, CBP Regulations (19 C.F.R. 134.46), as revised by T.D. 97-72, dated August 20, 1997, provides: In any case in which the words "United States," or "American," the letters
"U.S.A.," any variation of such words or letters, or the name of any city or location in the United States, or the name of any foreign country or locality other than the country or locality in which the article was manufactured or produced appear on an imported article or its container, and those words, letters or names may mislead or deceive the ultimate purchaser as to the actual country of origin of the article, there shall appear legibly and permanently in close proximity to such words, letters or name, and in at least a comparable size, the name of the country of origin preceded by "Made in," "Product of," or other words of similar meaning.
Section 134.46 provides that its special marking requirements are
triggered when CBP determines that the non-origin marking may mislead or deceive the ultimate purchaser as to the actual country of origin of the article. CBP has ruled that in order to satisfy the "close proximity" requirement, the country of origin marking must appear on the same sides(s) or surface(s) in which the name of the locality other than the country of origin appears. See HQ 708994, dated April 24, 1978. Therefore, the country of origin of the kits must be marked in close proximity to the Roswell, Georgia address, in comparable size and on the same side of the box. The blister packs contained with the kits need not be individually marked.
You need not list all components and their country of origin. Rather, you may mark the oral care kit package “Made in,” “Product of,” or other words of similar meaning. We note, however, that inasmuch as the marking requirements of 19 U.S.C. 1304 are applicable only to articles of "foreign origin," the oral care kits are not required to be marked with a reference to the United States origin upon importation into the United States. Claims of domestic origin is a matter under the jurisdiction of the Federal Trade Commission (FTC). Therefore, should you wish to identify any of the articles as "Made in the USA”, we recommend that you contact that agency at the following address: Federal Trade Commission Division of Enforcement 600 Pennsylvania Avenue, N.W. Washington, D.C. 20580.
Pursuant to section 102.11(c) of the CBP Regulations, the countries of
origin of the oral care kits assembled in Mexico from components of United States, Chinese and Mexican origin are the United States, Mexico and China for country of origin marking purposes. The blister packs may be excepted from the country of origin marking requirements under section 304 of the Tariff Act of 1930 (19 U.S.C. § 1304(a)(3)(D) and 19 C.F.R. § 134.32(d)) provided they are sold in properly marked oral care kit containers. The oral care kit containers must be individually marked. Marking of the shipping containers cases is insufficient.
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 CBP officer handling the transaction.
Gail A. Hamill, Chief
Tariff Classification and Marking Branch