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NY N022518

February 27, 2008

MAR-2 OT:RR:NC:1:104


Ms. Lindsay B. Meyer
Venable LLP
575 7th Street, NW
Washington, DC 20004


Dear Ms. Meyer:

This is in response to your letter dated January 22, 2008, on behalf of Molecular BioProducts, Inc., requesting a ruling on the country of origin for marking and NAFTA eligibility of pipette tips imported into the United States packaged in a tray with a lid. Samples (Item Nos. 214P-05 and 125-96RS) submitted with your letter for review will be returned to you per your request.

The pipette tips are designed to be used exclusively with Molecular BioProducts pipette systems. The tips are hollow tubes which taper down to a small orifice. The articles are used in laboratories for use in transferring a precise amount of fluid from one holder to another. When imported, the pipette tips will be enclosed in a plastic tray with a lid.

Plastic pellets (generally of either polypropylene or polystyrene) are formed into pipette tips in the United States. You state that the pipette tips are manufactured from ingredients and components that, to the best of Molecular BioProducts knowledge, are produced entirely in the United States. After manufacturing, the tips are shipped to Mexico for further assembly. Depending upon a customer’s needs, pipette tips are sold either with or without filters. In Mexico, filters are manually inserted into the pipette tips. Approximately 85% of the filters are of U.S. origin. The balance are manufactured and sourced in Mexico.

The plastic tray cases with lids are manufactured in Mexico from the U.S.-origin plastic pellets described above. The plastic tips will then be manually inserted into the plastic trays and the lids assembled. The pipette tips in their lidded tray cases are then returned to Molecular BioProducts in the United States for subsequent sale to customers.

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 134.45(a)(2) of the regulations, provides that "a good of a NAFTA country may be marked with the name of the country of origin in English, French or Spanish.” Section 134.1(g) of the regulations, 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.

Section 134.1(b), Customs Regulations [19 CFR 134.1(b)], defines the country of origin as the country of manufacture, production, or growth of any article of foreign origin entering the Untied 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.

Section 102.11, Customs Regulation (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 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 (e), Customs Regulations [19 CFR 102.1(e)] defines “foreign material” as “a material whose country of origin as determined under these rules is not the same country or origin as the country in which the good is produced.” Unfinished pipette tips (without the filters), plastic filters and plastic pellets for forming into the trays/lids are exported to Mexico for additional processing prior to the importation of the finished tips into the United States. Because the tips into which the filters are inserted are processed in Mexico of U.S. material, the tips are neither wholly obtained or produced, nor produced exclusively from domestic materials. Accordingly, neither 19 CFR 102.11 (a)(1) or 102.11(a)(2) may be used to determine the origin of the finished articles, and analysis must continue to 19 CFR 102.11(a)(3).

Pursuant to 19 CRF 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 as set forth in 19 CFR 102.20, and satisfies any other applicable requirements of that section. In this case, because the finished pipette tips imported into the United States from Mexico are classified under subheading 8479.90.9496, Harmonized Tariff Schedule of the United States (HTSUS), which provides for parts of machines and mechanical appliances having individual functions, not specified or included elsewhere in chapter 84, the change in tariff classification must be made in accordance with Section 102.20(o), Section XVI: Chapters 84 through 85, subheading 8479.90, HTSUS. Said section requires a change to subheading 8479.90 from any other heading, except from heading 8501 when resulting from a simple assembly.

The pipette tips, which are initially classified under subheading 8479.90, HTSUS, remain classified under subheading 8479.90, HTSUS, subsequent to additional processing (e.g., insertion of the filters) and packaging in Mexico. Even the “filter” itself is classified in subheading 8479.90, HTSUS, as the article does not actually filter. It serves to block the liquid while letting air through, thereby protecting the shaft from accidental fluid contamination. Thus, there is no applicable change in tariff classification within the requirements of Section 102.20, and the country of origin of the good may not be determined in accordance with this provision.

Since 19 CFR 102.11(a) incorporating Section 102.20, is not determinative of origin, the next step in determining the marking requirements is to apply Section 102.11(b), Customs Regulations, which states in part: “Except for a good that is specifically described in the Harmonized Tariff Schedule 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.”

Because the U.S. origin plastic pipette tips are the single material which imparts the essential character to the finished good and because the tips are classifiable in a tariff provision from which a change in tariff classification is not allowed under the applicable rule in 19 CFR 102.20(o), the U.S. origin pipette tube is the single material which imparts the essential character to the finished good pursuant to Section 102.18(b)(iii). Accordingly, for country of origin marking purposes, the country of origin of the finished pipette tips is the United States. Because the marking requirements of 19 U.S.C. 1304 are applicable only to articles of foreign origin, the pipette tips packaged in the lidded trays need not be marked upon entry into the United States.

The lidded tray is considered to be the “usual container” for packaging the pipette tips. You state that the trays are not reused. They are the type of container in which the pipette tips are usually sold. Section 134.22(d)(2), Customs Regulations states, in part, A good of a NAFTA country which is a usual container, whether or disposable and whether or not imported empty or filled, is not required to be marked with its own country of origin. Thus, by virtue of Section 134.22(d)(2), the trays with lids would also be excepted from marking.

By operation of General Note 12 of the HTSUS, the eligibility of a particular article for NAFTA duty preference is predicated, in part, upon an origin determination under the NAFTA Marking Rules of either Canada or Mexico. Application of the NAFTA Marking Rules contained in 19 CFR 102.11 did not yield an origin determination of either Canada or Mexico, but of the United States. However, the NAFTA Preference Override set forth in 19 CFR 102.19 is applicable to the subject merchandise. Specifically, 10 CFR 102.19(b) states: If, under any provision of this part, the country of origin of a good which is originating is determined to be the United States and that good has been exported from, and returned to, the Unites States after having been advanced in value or improved in condition in another NAFTA country, the county 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.

Based upon the facts presented, the pipette tips at issue are an originating good under NAFTA and have been determined under Section 102.11(b) to be a good of U.S. origin for marking purposes.

As the processes performed in Mexico (e.g., assembly operations such as inserting the filters) advance the goods in value and improve them in condition, Section 102.19(b), Customs Regulations, is applicable, and the country of origin of the products, for duty purposes is Mexico. Thus, when the pipette tips packaged in the lidded trays are returned to United States, they are entitled to NAFTA preferential treatment at the "MX" rate, assuming a Certificate of Origin (See 19 C.F.R. Section 181.11) is completed and signed for the goods.

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 Patricia O’Donnell at 646-733-3011.


Robert B. Swierupski

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