MAR-2-05 CO:R:C:V 733654 KG

Anthony D. Padgett, Esq.
Thelen, Marrin, Johnson & Bridges
805 15th Street, N.W.
Washington, D.C. 20005-3000

RE: Country of origin marking of imported non-prescription sunglasses; eyeglasses; substantial transformation

Dear Mr. Padgett:

This is in response to your letters of November 30, 1989, February 5, June 12, and August 3, 1990, requesting a country of origin ruling on behalf of your client regarding imported sunglasses. In HQ 555595 (May 21, 1990), addressed to Mr. John Mayo McKeown, Customs ruled on the applicability of subheading 9802.00.80 of the Harmonized Tariff Schedule of the United States ("HTSUS") to these items. You also requested a ruling on two other styles of sunglasses which will be addressed in separate letters. We regret the delay in responding to your inquiry.

FACTS:

You have submitted samples of sunglass components for which some of the processing is done in Mexico. Your client is in the process of entering into a contractual relationship with a Mexican company to perform the Mexican processing according to your client's specifications. Your client will have direct contact with the Mexican processor.

The submitted components are black nylon temples, fronts, and metal hinge pins all made in the U.S. which are shipped to Mexico for further processing. The term "front" refers to the component which holds the lenses and sits on the wearer's face. The "temples" are the side pieces which attach to the front and fit around the wearer's ears.

You presented two different scenarios in which processing for this style is done in Mexico. In the first scenario, the following operations are performed in Mexico on the temples: (1) the mold closure mark is removed by tracing the periphery of the temples with a hand grinder; (2) the temples are polished; (3) the registered trademark is printed on the end of the temples; and (4) the hinge pins are inserted into the first half of the temples. The temples are then attached to the fronts by inserting the metal hinge pin with pliers. The temples are then folded to check for the proper fit. The completed sunglass frame is visually inspected for defects and then packed and shipped to the U.S. for the insertion of non-prescription U.S.-made lenses.

The second scenario is the same, except that the fronts are attached to the temples in the U.S. rather than in Mexico.

ISSUE:

What is the proper country of origin marking of the imported non-prescription sunglass frames under either scenario?

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 U.S. 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.

Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304. Section 134.1(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 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 within the meaning of this part.

Section 134.35, Customs Regulations (19 CFR 134.35), states that the manufacturer or processor in the U.S. who converts or combines the imported article into a different article having a new name, character or use will be considered the ultimate purchaser of the imported article within the contemplation of section 304(a) of the Tariff Act of 1930, as amended, and the article shall be excepted from marking. The outermost containers of the imported articles shall be marked.

A substantial transformation occurs when articles lose their identity and become new articles having a new name, character or use. United States v. Gibson-Thomsen Co., 27 C.C.P.A. 267 at 270 (1940), National Juice Products Association v. United States, 10 CIT 48, 628 F.Supp. 978 (CIT 1986), Koru North America v. United States, 12 CIT ___, 701 F.Supp. 229 (CIT 1988).

Section 10.22, Customs Regulations (19 CFR 10.22), states that assembled articles entitled to the duty exemption under HTSUS subheading 9802.00.80 are considered products of the country of assembly for the purposes of country of origin marking. If an imported assembled article is made entirely of American-made materials, the United States origin of the material may be disclosed by using a legend such as "Assembled in ____ from material of U.S. origin," or a similar phrase.

Treasury Decision 74-38, dated January 14, 1974, addressed the issue of what method should be used to mark sunglass frames but did not describe the factual settings in which marking would be required.

I. Nylon sunglass frames processed as described in the first scenario

The nylon sunglass components involve U.S.-made components assembled in Mexico into finished sunglass frames which will be combined with non-prescription U.S.-made lenses in the U.S. Customs ruled in HQ 555595 (May 21, 1990), that the nylon sunglass frames were entitled to a partial duty exemption under HTSUS subheading 9802.00.80. Therefore, in accordance with 19 CFR 10.22, Mexico would be considered the country of origin of the assembled sunglass frames which are imported into the U.S. without lenses.

The question then presented is whether the insertion of the U.S.-made non-prescription lenses and other subsequent processing done in the U.S. constitutes a superceding substantial transformation. Customs ruled in HQ 731757 (February 23, 1990), that the insertion of lenses into frames to make "over-the- counter" sunglasses in Japan was a substantial transformation and the sunglasses were considered products of Japan for country of origin marking purposes. The ruling stated that: "Unlike prescription eyewear where ultimate purchasers make a separate purchasing decision regarding the frames alone, purchasers of over-the-counter sunglasses make their decision while inspecting frames and lenses already combined."

We find that the insertion of non-prescription lenses into black nylon sunglass frames in the U.S. constitutes a substantial transformation. The nylon frames, once combined with the lenses in the U.S., are known as sunglasses. This finished article is a new article of commerce with a different name, a very specific use and a change in character from the frames alone. The frames alone could be used to make prescription sunglasses, gag or costume items, or clear eyeglasses. Once the non-prescription U.S.-made sunglass lenses are added, the finished item is a pair of sunglasses. Sunglasses are used to protect the wearer's eyes from the sun. The type of lens used determines the value and appropriate use of a particular pair of sunglasses for a particular activity or particular lighting conditions.

Since the nylon frames are substantially transformed in the U.S., pursuant to 19 CFR 134.35, the U.S. manufacturer that inserts the non-prescription lenses into the frames is the ultimate purchaser of the frames.

An exception from marking is provided in 19 U.S.C. 1304(a)(3)(H) and 19 CFR 134.32(h) where an ultimate purchaser, by reason of the character of the article or by reason of the circumstances of its importation, must necessarily know the country of origin of the article even though it is not marked to indicate its origin. In ruling HQ 730243 (March 5, 1987), Customs required that the importer must be the ultimate purchaser of the imported article and have direct contact with the foreign supplier to qualify for the 19 U.S.C. 1304 (a)(3)(H) exemption. In this case, the U.S. manufacturer has a contractual relationship directly with the Mexican supplier whereby the U.S. manufacturer sends the nylon temples and fronts to Mexico for processing under its supervision according to its specifications and re-imports the sunglass components. The U.S. manufacturer in this case deals directly with the Mexican company that is processing the sunglass components. Therefore, the sunglass components are entitled to the exemption from marking set forth at 19 U.S.C. 1304(a)(3)(H) and 19 CFR 134.32(h).

II. Nylon sunglass frames processed as described in the second scenario

Section 134.32(m), Customs Regulations (19 CFR 134.32(m)), excepts from country of origin marking requirements products of the U.S. exported and returned. Customs has interpreted this provision to mean that American goods exported which are not substantially transformed in a foreign country or not entitled to the partial duty exemption under HTSUS subheading 9802.00.80 are excepted from country of origin marking requirements upon their return to the U.S. See HQ 729316 (April 20, 1989).

The minor processing done in Mexico to the fronts and temples would not create a new article of commerce with a new name, character or use. No new article of commerce is created; the fronts and temples merely undergo minor finishing. The fronts and temples exist as such when exported to Mexico and have the same name, character and use when re-imported. In short, the Mexican processing does not constitute a substantial transformation. Because in this scenario, assembly of the frames occurs in the U.S., these imported fronts and temples would not appear to be entitled to the partial duty exemption set forth under HTSUS subheading 9802.00.80. Since the imported fronts and temples are not substantially transformed in a foreign country and assuming that neither the fronts nor the temples would be entitled to the partial duty exemption set forth under HTSUS subheading 9802.00.80, the imported fronts and temples would be excepted from country of origin marking under 19 CFR 134.32(m). HOLDING:

The nylon fronts and temples processed as described in scenario one are excepted from country of origin marking pursuant to 19 U.S.C. 1304(a)(3)(H) and 19 CFR 134.32(h).

The nylon frames processed as described in scenario two are excepted from country of origin marking pursuant to 19 CFR 134.32(m). No country of origin marking is required on the non- prescription nylon sunglasses under either scenario.

Sincerely,

Marvin M. Amernick
Chief, Value, Special Programs
and Admissibility Branch


cc: District Director
Laredo, Texas