**HQ 560992**

**July 6, 1998**

**CLA-2** RR:TC:SM 560902 BLS

**CATEGORY:** Classification

**TARIFF NO.:** 3215.90.50

Port Director

9 N. Grand Avenue

Nogales, AZ 85621

**RE:** Eligibility of ink refill kits for NAFTA Preference; originating
goods; country of origin marking; Article 509

Dear Sir:

This is in reference to a letter dated October 27, 1997, on behalf of
Nu-Kote International (Nu-Kote), requesting a ruling concerning the
tariff classification of certain ink refill kits. The importer also asks
whether the imported kits will be considered "originating" goods for
purposes of determining whether they are eligible for NAFTA preference,
and the country of origin marking requirements for the articles. Samples
have been submitted.

**FACTS:**

The ink refill kits, Item Numbers RF16, RF40 and RF63, are imported from
Mexico by Nu-Kote from Nu-kote Internacional de Mexico, S.A. de C.V. The
kits are designed to refill ink jet printer cartridges.

[Item RF16]{.underline} comprises three plastic ink filled squeeze
bottles (colors cyan, magenta and yellow) with metal needles. A user can
insert the needle into an ink jet print cartridge and refill the
cartridge by squeezing the ink out of the bottle. A metal drill bit with
a plastic handle is included in the kit. This will be used to make a
hole in the print cartridge into which the needle will be inserted. A
small sponge is provided to wipe away any ink spilled during refilling.

[Item RF40]{.underline} consists of a plastic refill bottle with a
plastic needle. It contains black ink. A separate plastic primer syringe
is also included along with an identical sponge as the one included in
RF16. A plug removal tool, used to puncture the hole in the print

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cartridge through which the ink will be refilled, and two black plugs to
fill the hole are also provided. The components are packaged in a
plastic tray that can also be used as a refill station.

[Item RF 63]{.underline} comprises a plastic squeeze bottle with a metal
needle. This bottle contains black ink for ink jet cartridges. A plug
removal tool, such as the one included in RF40, screw plugs, a screw
plug wrench, and sponge are also included. The plug removal tool is used
to puncture a hole in the ink cartridge to be refilled. Once the
cartridge is refilled using the squeeze bottle, the plastic plugs are
inserted into the holes using the screw plug wrench. The screw plug
wrench is also used to prime the cartridge once it has been filled.

The refill kits are produced in Mexico with the use of U.S.-origin ink.
Nu-Kote states that it also provides squeeze bottle components with
needles and primers, plug removal tools, and packaging materials
(cartons, plastic trays, plastic wrap) all of which are produced
entirely from materials which are of U.S.-origin.

The sponges, seal plugs, cartridge tool, drill bit, and plug wrench are
of non-NAFTA origin. These components are shipped with the ink, plastic
articles, and packaging materials to NIM for assembly.

NIM assembles the plastic squeeze bottles and then transfers the ink
from the drums into the squeeze bottles. They then assemble the kits and
package them for retail sale. The refill kits are then shipped back to
Nu-Kote.

**ISSUES:**

1\) What is the classification of the ink refill kits?

2\) Whether the imported ink refill kits will qualify as originating
goods for purposes of determining whether the articles are eligible for
NAFTA preference.

3\) What are the country of origin marking requirements for the ink
refill kits?

**LAW AND ANALYSIS:**

*[Classification]{.underline}*

Merchandise is classifiable under the Harmonized Tariff Schedule of the
United States (HTSUS) in accordance with the General Rules of
Interpretation (GRIs). GRI 1

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states in part that for legal purposes, classification shall be
determined according to the terms of the headings and any relative
section or chapter notes, and provided the headings or notes do not
require otherwise, according to GRIs 2 through 6. GRI 3(b)

states, in part, that goods put up in sets for retail sale ("sets")
shall be classified as if consisting of the component which gives them
their essential character.

The Harmonized Commodity Description and Coding System Explanatory Notes
(ENs) constitute the official interpretation of the Harmonized System.
While not legally binding, and therefore not dispositive, the ENs
provide a commentary on the scope of each heading of the Harmonized
System and are thus useful in ascertaining the classification of
merchandise under the System. Customs believes the ENs should always be
consulted. [See]{.underline} [Treasury Decision]{.underline} (T.D.)
89-80, 54 Fed. Reg. 35127, 35128 (Aug. 23, 1989).

To qualify as a set for tariff purposes, relevant ENs for GRI 3(b) list
three requirements: (1) there must be at least two articles which are,
prima facie, classifiable in different headings; (2) the components must
be put up together to meet a particular need or carry out a specific
activity; and, (3) the components must be put up in a manner suitable
for sale directly to users without repacking (e.g., in boxes or cases or
on boards).

The plastic ink refill bottle, wrench and other items constitute a set
in that they meet all the requirements listed in the Explanatory Notes
for GRI 3. Specifically, the ink refill bottle and wrench are prima
facie classifiable in different headings. The wrench is classifiable in
heading 8204 and the ink cartridge in heading 3215. They are put up
together with the other items to meet a particular need. In this
instance the need is for a method of refilling an ink jet print
cartridge.

In NY C81423 dated December 5, 1997, concerning the identical items,
Customs found that the essential character of the imported kit is
imparted by the ink, and held that each ink refill set was properly
classifiable under subheading 3215.90.50, HTSUS, which provides for
Printing ink, writing or drawing ink and other inks, whether or not
concentrated or solid: Other: Other. We hereby affirm NY C81423.

*[Originating Goods]{.underline}*

A. Originating Goods

General Note 12 of the HTSUS, incorporates Article 401 of the NAFTA into
the

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HTSUS. General Note 12(b) provides in pertinent part the following:

For purposes of this note, goods imported into the

customs territory of the United States are eligible

for the tariff treatment and quantitative limitations

set forth in the tariff schedule as "goods originating

in the territory of a NAFTA party" only if:

\(i\) they are goods wholly obtained or produced entirely

in the territory of Canada, Mexico and/or the United

States; or

\(ii\) they have been transformed in the territory of

Canada, Mexico, and/or the United States so that \--

\(A\) except as provided in subdivision (f) of this note,

each of the non-originating materials used in the

production of such goods undergoes a change

in tariff classification described in subdivisions (r),

\(s\) and (t) of this note or the rules set forth therein, or,

\(B\) the goods otherwise satisfy the applicable

requirements of subdivision (r), (s) and (t) where no

change in tariff classification is required, and the

goods satisfy all other requirements of this note; or

\(iii\) they are goods produced entirely in the territory of

Canada, Mexico and/or the United States exclusively

from originating materials.

Since, as described, each of the three sets is comprised in part of
materials which come from countries other than Mexico, Canada and/or the
United States, neither General Note 12(b)(i) or 12(b)(iii) is
applicable. Therefore, we must ascertain whether the non-originating
materials in each case are transformed in Mexico pursuant to General
Note 12(b)(ii)(A), HTSUS. To qualify under this provision, the
non-originating material(s) must undergo the requisite change in tariff
classification required in General Note 12(t).

As noted, each of the imported sets is classified under subheading
3215.90.50, HTSUS. All of the non-originating materials, i.e., sponges,
seal plugs, cartridge tool,

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drill bit, and plug wrench are classified in provisions outside of
heading HTSUS heading 3215. General Note 12(t)/32.15 requires "A change
to heading 3215 from any other heading."

Thus, a change in tariff classification does occur in each case, and the
imported ink refill kits are considered to be "goods originating in the
territory of a NAFTA party," and thus eligible for NAFTA preference.

*[Country of Origin Marking]{.underline}*

The marking statute, section 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 United States shall be marked in a
conspicuous place as legibly, indelibly, and permanently as the nature
of the article will permit, in such a manner as to indicate to the
ultimate purchaser in the United States the English name of the country
of origin of the article. Part 134, Customs Regulations

(19 C.F.R. Part 134), implements the country of origin marking
requirements and exceptions of 19 U.S.C. §1304.

The country of origin marking requirements for a "good of a NAFTA
country" are

also determined in accordance with Annex 311 of the NAFTA, as
implemented by section 207 of the North American Free Trade Agreement
Implementation Act (Pub. L. 103-182, 107 Stat. 2057) (December 8, 1993)
and the regulations set forth in 19

CFR Parts 102, 134.

Section 134.1(b) (19 C.F.R. §134.1(b)) of the regulations defines
"country of origin" as:

The 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"; however, for a good of a NAFTA country, the NAFTA

Marking Rules will determine the country of origin.

Section 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) 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.

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Part 102 of the regulations (19 C.F.R. Part 102), sets forth the "NAFTA
Marking Rules." Section 102.11 of the regulations (19 C.F.R. §102.11)
sets forth the required hierarchy for determining country of origin for
marking purposes. Section 102.11(a) provides that "\[t\]he 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 requirements of these rules are satisfied."

"Foreign Material" is defined in section 102.1(e) of the regulations 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."

Since none of the three sets is wholly obtained or produced, or produced
exclusively from domestic (Mexican) materials, section 102.11(a)(3) is
the applicable rule which must first be applied. In order to determine
whether Mexico is the country of origin under this rule, we must look at
those materials whose country of origin is other than Mexico, which
includes material of U.S-origin ("Foreign Material" under 19 C.F.R.
§102.11(e)).

As each of the three sets is classified under subheading 3215.90.50,
HTSUS,

the change in tariff classification must be made in accordance with
section 102.20(f), Section VI: Chapters 28 through 38, heading 3215 of
the regulations, which provides as follows:

A change to heading 3215 from any other heading.

As the ink of U.S.-origin (foreign material) is classifiable under
subheading 3215.90.50, a tariff shift does not occur and accordingly, we
must proceed to 19 C.F.R. §102.11(b), in the hierarchal order, to
ascertain the country of origin marking requirements of the imported
article. However, section 102.11(b) is not applicable if the good is
specifically described in the Harmonized System as a set, or is
classified as a set pursuant to General Rule of Interpretation 3. As a
result, since neither section

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102.11(a) or (b) is applicable, section 102.19 is triggered. Section
102.19(a) provides that:

Except in the case of goods covered by paragraph (b) of this

section, if a good which is originating within the meaning of §181.1(q)
of this chapter is not determined under §102.11(a) or (b) or §102.21 to
be a good of a single NAFTA country, the country of origin of such good
is the last NAFTA country in which that good

underwent production other than minor processing, provided that a
Certificate of Origin (see §181.11 of this chapter) has been completed
and signed for the good.

As each of the imported kits undergo assembly operations in Mexico, the
country of origin of the kits is Mexico, the last NAFTA country in which
the good underwent production other than minor processing as defined in
19 C.F.R. §102.1(m).

**HOLDING:**

1\) The three ink refill sets are properly classifiable under subheading
3215.90.50, HTSUS, which provides for Printing ink, writing or drawing
ink and other inks, whether or not concentrated or solid: Other: Other.
NY C81423 dated December 5, 1997 is hereby affirmed.

2\) As the non-originating materials undergo the requisite change in
tariff classification in Mexico required in General Note 12(t), HTSUS, a
change in tariff classification occurs with respect to each of the three
ink refill kits. Therefore, the imported articles are considered to be
"goods originating in the territory of a NAFTA party," and eligible for
NAFTA preference.

3\) As the imported kits undergo assembly operations in Mexico and
provided a certificate of origin has been completed and signed for the
good, pursuant to 19 C.F.R. §102.19(a) the country of origin of the kits
is Mexico, the last NAFTA country in which the good underwent production
other than minor processing as defined in 19 C.F.R. §102.1(m).

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Please provide a copy of this decision to Marc D. Torrence, Import
Manager, V. Alexander & Co., Inc., P.O. Box 291929, Nashville, Tenn.
37214-3650.

Sincerely,

John Durant, Director

Commercial Rulings Division