RR:TC:SM 559847 KKV

Mr. Jay Younis
Trans-American Medical
Instrument Corporation
7633 West 100th Place
Bridgeview, IL 60455

RE: Country of origin marking requirements for surgical instruments; lister bandage scissors; mosquito forceps; kelly forceps; iris scissors; operating scissors; National Hand Tool; substantial transformation

Dear Mr. Younis:

This is in response to your letter dated May 10, 1996 (and subsequent transmittals dated June 15, 1996 and December 13, 1996) which requests a ruling regarding the country of origin marking requirements for certain surgical instruments. Samples have been submitted for our consideration.

FACTS:

You indicate that Trans-American Medical Instrument Corporation (Tamsco Instruments) is involved in the production of several types of surgical instruments in the United States, including lister bandage scissors, mosquito forceps, kelly forceps, iris scissors and operating scissors. You have described the operations involved in producing these instruments as follows. U.S.-origin stainless steel sheets are purchased and tested for chemical composition. The sheets of stainless are cut into strips of suitable width, which are further cut into blanks. The blanks are heated and hammer forged, transforming the blanks into "forgings" which are then inspected visually and with gauges. The forgings are annealed to remove any stresses and are trimmed to remove any "flashes" created by the forging process. Finally, the forgings undergo a cold stamping process in which the trimmed forgings are straightened before exportation to Pakistan for completion into finished forceps and scissors.

In Pakistan, the forgings undergo milling operations in which the box, rachet and jaw serrations are cut into the forceps. The milled forgings are assembled and the initial setting is completed. The assembled instruments undergo grinding, filing, inspection and heat treatment, including tempering and testing for hardness. The instruments also undergo acid pickling to remove the thin layer of "scaling" deposited during the heat treatment process and are polished using a variety of polishing machines, soft cutting wheels, grinding/polishing belts, cotton mops and satin finishing wheels. The instruments undergo chemical cleaning, final setting and adjustment operations, buffing and ultrasonic cleaning. The instruments are marked using chemical etching and steel stamping processed, visually inspected, boil tested and lab tested prior to labeling and packing for shipment to the U.S.

ISSUE:

Whether forgings of U.S. origin are substantially transformed in Pakistan by milling, assembly, heat treating, cleaning and polishing and inspection operations performed in Pakistan, thereby subjecting the imported instruments to country of origin marking when returned to the United States.

LAW AND ANALYSIS:

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 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. Congressional intent in enacting 19 U.S.C. 1304 was "that the ultimate purchaser should be able to know by an inspection of the marking on the imported goods the country of which the goods is the product. The evident purpose 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. Inc., 27 CCPA 297, 302, C.A.D. 104 (1940).

Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and the 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 the marking laws and regulations.

For country of origin marking purposes, a substantial transformation of an imported article occurs when it is 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. As provided in 19 CFR 134.32(m), products of the U.S. exported and returned are specifically excepted from country of origin marking requirements. Therefore, if a U.S. product is sent abroad for processing, the article remains a product of the U.S. excepted from the country of origin marking requirements unless prior to its return it is substantially transformed in that country and, therefore, becomes an article of foreign origin.

In National Hand Tool Corp. v. United States, 16 CIT 308, 312 (1992), aff'd, 989 F.2d 1201 (Fed. Cir. 1993), sockets and flex handles were either cold formed or hot forged into their final shape, speeder handles were reshaped by a power press after importation, and the grip of the flex handles were knurled in the U.S. The imported parts were then heat treated which strengthened the surface of the steel, and cleaned by sandblasting, tumbling, and/or chemical vibration before being electroplated. In certain instances, various components were assembled together which the court stated required some skill and dexterity. The court determined that the imported components were not substantially transformed by the strengthening, cleaning, and assembly performed in the U.S.; therefore, they remained products of Taiwan. In making its determination, the court focused on the fact that the components had been cold-formed or hot-forged "into their final shape before importation", and that "the form of the components remained the same" after the assembly and heat-treatment processes performed in the U.S. Although the court stated that a predetermined use would not preclude the finding of a substantial transformation, the determination must be based on the totality of the evidence. No substantial change in name, character or use was found to have occurred as a result of the processing performed in the U.S.

In HRL 558747, dated January 20, 1995, German forgings underwent a variety of manufacturing processes in the U.S. Customs relied upon the analysis set forth in National Hand Tool, and held that the additional work of assembling the surgical instrument, cutting the ratchet teeth and the scaling down operations were not extensive enough operations to effect a substantial transformation.

In 559236, October 26, 1995, Customs considered German manufactured forgings in which the box lock was formed and the ratchet teeth and serrations were cut prior to exportation to Pakistan for hardening, polishing and assembly. Customs held that the final shape and essential characteristics of the instruments was imparted by the operations performed in Germany and that the hardening, polishing and assembly of the two pieces in Pakistan did not effect a substantial transformation.

With regard to the forceps and scissors at issue, we note that, similar to the facts presented in National Hand Tool, the instrument forgings are hot forged into their final shape prior to exportation to Pakistan. Although the forgings undergo additional processing and are further refined and assembled into finished instruments, the form of the components remains the same. Inasmuch as the forgings resemble the shape and size of the completed instruments upon importation into Pakistan, the operations performed in Pakistan do not substantially transform the forgings into a new and different article of Pakistani origin. Accordingly, the origin of the finished instruments is the United States.

Because the surgical instruments are products of the U.S. that are exported and returned without undergoing a substantial transformation, they are excepted from country of origin marking requirements pursuant to 19 CFR 134.32(m) and, therefore, they may re-enter the U.S. without any reference to Pakistan. Your letter indicates that you have already consulted the Federal Trade Commission and received authorization from that agency regarding the use of "TAMSCO USA." Whether the marking "Made in the U.S.A." may appear on the surgical instruments is also a matter within the jurisdiction of the Federal Trade Commission. Therefore, you should contact the FTC at the following address regarding the appropriate use of this phrase: Federal Trade Commission, Division of Enforcement, 6th and Pennsylvania Avenue, N.W., Washington, D.C. 20508.

HOLDING:

On the basis of the information and sample submitted, it is our determination that stainless steel forgings which have been hot forged into the final shape of surgical instruments are not substantially transformed into a new and different article by additional milling, assembly, heat treating, cleaning and polishing and inspection operations performed in Pakistan. Therefore, upon reimportation, the surgical instruments are exempt from marking as products of the United States exported and returned.

A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the Customs officer.


Sincerely,

John Durant
Director, Tariff Classification
Appeals Division