MAR-2-05 CO:R:C:V 734663 ER
Mr. Robb Winn
President
European Manufacturers Agency, Inc.
21963 U.S. 19 North
Clearwater, Florida 34625
RE: Country of Origin Marking of Imported Eyeglass Frame
Components; Substantial Transformation; Ultimate
Purchaser; Method of Marking; 19 CFR 134.35.
Dear Mr Winn:
This is in response to your letters of April 1 and 27, 1992,
which were forwarded to us under separate cover dated May 22,
1992, from the New York Seaport, National Import Specialist
Division, Branch 1. An additional submission, undated, was
received by this office on August 3, 1992. In your letters you
request a ruling regarding the country of origin marking
requirements for imported eyeglass frame components.
FACTS:
European Manufacturers Agency ("EMA") and its associate
company, Safety First Optical ("SFO"), are contemplating
purchasing frame fronts and temples in a partially finished
condition from various suppliers worldwide. Upon arrival in the
U.S., the components would be colored and the frame would be
assembled, adding other minor pieces, and packaged accordingly.
By telephone conversation on August 6, 1992, you stated that no
further processing operations would be necessary.
You inquire whether the color treatment and subsequent
assembly of the partially finished frames would amount to a
substantial transformation of the product. If such processing
does not result in a substantial transformation, you would like
to know if the finished frames could be marked with country of
origin by mounting each one to a specification card measuring
approximately 6" x 2.75", which would display one of the
following legends: "Frame Made in (country of origin)" or "Frame
(country of origin)". Samples of the imported frames and the
cardboard specification card were submitted.
ISSUES:
1. Whether color treating partially finished imported
eyeglass frames and assembling them to create finished eyeglasses
would constitute a substantial transformation within the meaning
of 19 U.S.C. 1304.
2. If such operations do not result in a substantial
transformation, what is the proper method of marking the finished
eyeglasses with country of origin?
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 (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 (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 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.
The primary purpose of the country of origin marking statute
is to "mark the goods so that 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, C.A.D. 104 (1940). Section 134.1(d), Customs
Regulations (19 CFR 134.1(d)) defines the "ultimate purchaser"
generally as the last person in the U.S. who will receive the
article in the form in which it was imported.
Section 134.35, Customs Regulations (19 CFR 134.35),
provides that an article used in the U.S. in manufacture which
results in an article having a name, character, or use differing
from that of the imported article will be within the principle of
the decision of U.S. v. Gibson-Thomsen Co. Inc., 27 C.C.P.A. 267
(C.A.D. 98) (1940). Under this principle, the manufacturer or
processor in the U.S. who substantially transforms the imported
article into an article with 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 (19 U.S.C. 1304(a)), and the article shall be
excepted from marking. The outermost containers of the imported
articles shall be marked in accordance with this part.
However, if the manufacturing process is merely a minor one
which leaves the identity of the imported article intact, the
consumer or user of the article after the processing, will be
regarded as the "ultimate purchaser." 19 CFR 134.1(d)(2).
In HQ 728504 (October 15, 1985), Customs pointed out that
the assembly of imported frames does not constitute a substantial
transformation of the item sufficient to make the importer the
ultimate purchaser and that in such a case, country of origin
marking would be required on the imported fronts and temples. See
also, HQ 709266 (July 11, 1978) (assembly of eyeglass frames does
not constitute a substantial transformation.) Cf., C.S.D. 80-
43 (July 17, 1979) (substantial transformation occurs where the
importer subjects eyeglass fronts and temples to further
processing before assembly and color-dying). Also cf., HQ
734474 (April 13, 1992) and HQ 709551 (November 13, 1978).
Nor does the dying or coloring of the frame components
amount to a substantial transformation. In C.S.D. 92-10 (October
17, 1990), Customs found that applying epoxy and paint to
sunglasses frames did not constitute a substantial
transformation. C.S.D. 92-10 is in accordance with C.S.D. 88-12
(August 12, 1988), in which Customs ruled that U.S. made earrings
painted a solid color in Canada are not substantially
transformed. Painting the earrings was characterized as a "minor
finishing operation which leaves the fundamental identity of the
earrings intact" rather than the creation of a highly decorative
article with artistic qualities.
Taking into consideration the above-noted decisions, we
believe that the operations performed in the instant case
subsequent to importation -- dying the frame components followed
by assembly, with other minor pieces, into finished eyeglass
frames -- cannot be said to result in a substantial
transformation. No new article of commerce is created and there
is no change in name, character or use as a result of the
coloring or dying and assembly of the frame components.
Consequently, the finished frames must be marked as articles of
foreign origin.
The purposes of the marking statute are not served in this
case by requiring each component of the eyeglasses to be marked
with country of origin. If each component of the eyeglasses were
marked, the ultimate purchaser would have to view the article
from several aspects to see the various countries of origin.
Moreover, confusion would likely result to the ultimate purchaser
as to the origin of the finished product unless beside the
marking on each component the name of the particular component
were specified e.g., "Temple Made in Italy", "Front Made in
France", etc. However, if all the components in a finished pair
of eyeglasses are produced in the same country, the marking
"Frame Made in (country of origin)" or "Frame (country of
origin)" inscribed on the frame would be acceptable.
But where, as here, the various components for the finished
eyeglasses are sourced in several countries, a "central marking"
method is appropriate. See, T.D. 67-173, 1 Cust. Bull. 366
(1967); HQ 734214 (November 19 1991); HQ 734165 (December 2,
1991) and HQ 734497 (June 8, 1992). As such, the use of the
described cardboard specification card, or a label, attached to
the eyeglasses, is satisfactory. The marking on the
specification card must be conspicuous and clearly visible
without having to detach the eyeglasses. An acceptable marking
on the card could read: "Assembled in the U.S. from components
from (names of countries)" or "Components made in (names of
countries)". The name of each component's country of origin must
be identified, e.g., "Components made in France, Italy and
Germany". Designating two or more countries in the alternative
(either/or) is not satisfactory. See, C.S.D. 89-111 and HQ
734560 (July 20, 1992).
HOLDING:
Partially finished eyeglasses imported to be colored and
assembled in the U.S. are not substantially transformed as a
result of the operations performed in the U.S. Accordingly, the
eyeglasses must be marked with country of origin, as described
above in the ruling.
Sincerely,
John Durant, Director
Commercial Operations