MAR-2-05 CO:R:C:V 733693 KG
Anthony D. Padgett, Esq.
Thelen, Marrin, Johnson & Bridges
805 15th Street, N.W.
Washington, D.C. 20005-2207
RE: Country of origin marking of imported sunglasses front
pieces: sunglasses frames; eyeglasses; substantial
transformation; painting; Madison Galleries.
Dear Mr. Padgett:
This is in response to your letter of August 1, 1990,
requesting a country of origin ruling on behalf of Bausch & Lomb
Incorporated, regarding imported sunglasses front pieces.
FACTS:
Bausch & Lomb will ship U.S.-made gold-colored wire front
pieces to Mexico to have epoxy and paint applied. The Mexican
operation involves unskilled workers applying paint and epoxy by
hand with small paint brushes. This procedure gives the front
pieces a tortoise shell appearance.
The front pieces are then shipped back to the U.S. with the
outermost package labeled "Mexico." In the U.S., the front
pieces have U.S.-made nose pieces, U.S.-made temples and U.S.-
made non-prescription lenses attached. The finished non-
prescription sunglasses, known as the "Tortuga" model, are then
inspected, packaged and shipped to wholesalers and other
distribution points.
A sample wire front piece and finished front piece were
submitted for examination.
ISSUE:
Whether the imported sunglasses front pieces with the
tortoise shell appearance are excepted from individual country of
origin marking.
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 134.32(m), Customs Regulations (19 CFR 134.32(m)),
excepts from individual marking products of the U.S. exported and
returned. In applying this section, Customs has ruled that
products of the U.S. which are exported and returned are
generally not subject to country of origin marking unless they
are substantially transformed in a foreign country. See HQ
729519 (May 18, 1988).
The question presented is whether the application of paint
and epoxy on sunglasses fronts by unskilled workers in Mexico is
a substantial transformation. The Court of International Trade
concluded in Madison Galleries, Ltd., v. United States, 688 F.
Supp. 1544 (CIT 1988), aff'd, 870 F.2d 627 (Fed. Cir. 1989), that
the painting and decoration of blank porcelain vases in Hong Kong
was a substantial transformation. However, as you noted, the
Court gave great weight to the fact that the decoration added at
least 35 percent to the appraised value of the vases and that
elaborate artistic processes were applied to the vases. Further,
Customs set forth its interpretation of Madison Galleries in T.D.
89-21 (February 15, 1989):
[t]he court's position that the mere decoration of
porcelainware constitutes substantial transformation
runs counter to a substantial line of administrative
rulings ... because this secondary determination was
unnecessary to an adjudication of the essential issue
of the case [eligibility for the Generalized System of
Preferences] it is considered dicta...The Customs
Service continues to adhere to its position that the
mere decoration of porcelainware does not constitute a
substantial transformation.
Customs ruled in C.S.D. 88-23 (August 12, 1988), 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. Unlike the painting
in Madison Galleries which produced a highly decorative article
with artistic qualities, the earrings here are painted a solid
color and lack any artistic and decorative effects." Customs
also ruled in HQ 732964 (August 3, 1990), that the painting of
ceramic bells known as "bisque ware" is not a substantial
transformation.
The sunglasses fronts involved in this case are similar to
the earrings in C.S.D. 88-23; the fronts are painted and epoxy is
applied to give a tortoise shell appearance and there is no
artistic effect created. The work is done by unskilled laborers
who do not require artistic ability to perform their job.
Although no figures were quoted regarding the value of the
Mexican processing, there is no indication that it adds a
significant increase in value to the finished sunglasses. For
these reasons, we conclude that the sunglasses fronts are not
substantially transformed in Mexico. Since the sunglasses fronts
are made in the U.S., exported and returned, and not
substantially transformed upon return, pursuant to 19 CFR
134.32(m), these sunglasses fronts are excepted from country of
origin marking.
HOLDING:
Applying paint and epoxy to wire-frame sunglasses fronts is
not a substantial transformation. The wire-frame sunglasses
fronts are excepted from country of origin marking pursuant to 19
CFR 134.32(m).
Sincerely,
Marvin M. Amernick
Chief, Value, Special Programs
and Admissibility Branch