MAR-2-05 RR:CR:SM 563036 SS
Ms. Carol Brian, VP Operations
Radius
207 Railroad Street
Kutztown, PA 19530 RE: Country of origin marking of manual toothbrush; substantial transformation. Dear Ms. Brian: This is in response to your letter dated May 7, 2004, requesting a ruling on the country of origin marking requirements for toothbrushes made from handles imported from China and toothbrush parts manufactured in the United States. Photographs showing the handle, brush portion and assembled toothbrush were submitted for evaluation. FACTS: The “brush portion” of the toothbrush is made in the United States. The “brush portion” of the toothbrush consists of the connector, head and bristles. The handle is imported from China. The handle is assembled to the “brush portion” of the toothbrush in the United States to form a completed manual toothbrush. The handle is permanently attached to the remaining pieces and is functionally necessary to the operation of the finished article. You state that the handle will not be sold separately from the head. You state that you wish to mark the toothbrush “made in the USA.” ISSUE: What is the country of origin marking requirements of the toothbrush?
LAW AND ANALYSIS: The marking statute, 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 (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 134.35, Customs Regulations (19 CFR 134.35), provides 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 19 U.S.C. 1304 and the article shall be excepted from marking. The outermost containers of the imported articles shall be marked.
Two court cases have considered whether imported parts combined in the U.S. with domestic parts were substantially transformed for country of origin marking purposes: United States v. Gibson-Thomsen Co., 27 C.C.P.A. 267 (1940), and Uniroyal, Inc. v. United States, 542 F. Supp. 1026 (CIT 1982), aff’d 702 F.2d 1022 (Fed. Cir. 1983). In Gibson-Thomsen, the court held that imported wood brush block and toothbrush handles which had bristles inserted into them in the U.S. lost their identity as such and became new articles having a new name, character and use. However, in Uniroyal, imported shoe uppers were found to be the "essence of the completed shoe" and, therefore, were not substantially transformed when combined with domestic soles in the United States.
In Headquarters Ruling Letter (HQ) 731432, dated June 6, 1988, Customs set forth some factors to be considered in determining whether imported goods combined in the U.S. with domestic products were substantially transformed for country of origin marking purposes. The following six factors were considered: 1) whether the article is completely finished; 2) the extent of the manufacturing process of combining the imported article with the domestic article as compared with the manufacturing of the imported article; 3) whether the article is permanently attached to its counterparts; 4) the overall importance of the article to the finished product; 5) whether the article is functionally necessary to the operation of the finished article, or whether it is an accessory which retains its independent function; and 6) whether the article remains visible after the combining. These factors are not exclusive and there may be other factors relevant to a particular case and no one factor is determinative.
In HQ 734521, dated September 17, 1992, Customs considered a vise handle imported from Taiwan which was combined with U.S.-made vise parts, namely, the vise body, movable jaw, reversible jaw plates, nut, screw, retaining collar, screw support, and thrust bearings. Customs found that the imported vise handle was substantially transformed after importation into the U.S. The vise handle was only a less important part among the various parts of the vise, and the key parts of the vise were the body and jaws which were made in the U.S. This determination was also based upon HQ 733804, dated November 9, 1990, where Customs ruled that attaching a U.S. handle to an imported broom head did not substantially transform the imported broom head, but instead, the broom had to be marked with the country of origin of the broom head because it was the "essential element of the finished article." Similarly in HQ 733196, dated August 10, 1990, Customs determined that an imported ratchet handle was substantially transformed because the U.S.-made pawl and parts were the "very essence of the finished product." See also HQ 734246, dated October 21, 1991(holding that the country of origin of a hammer is determined by where the head is made, and not the handle).
In this case, the brush portion of the toothbrush is the essence of the finished product. The toothbrush handle is only a less important part among the various parts of the toothbrush. Like the vise in HQ 735421, supra, the key parts of the toothbrush are the connector, head and bristles which are made in the U.S. The handle of the vise was not controlling for the country of origin marking, but instead the vise determined the country of origin. Similarly, the brush portion of the toothbrush rather than the handle determines the country of origin.
Based on our consideration of all these factors, we conclude that the toothbrush handle is substantially transformed in the U.S. as a result of combining it with the U.S. manufactured pieces. Accordingly, we find that Radius is the ultimate purchaser of the vise handle under 19 CFR 134.35. Therefore, prior to assembly, the boxes containing the imported toothbrush handles must continue to be marked with the country of origin of the handle, China. However, after assembly onto the brush portion of the toothbrush, the handle is excepted from marking. With regard to the finished toothbrush whose origin is the U.S., 19 U.S.C.1304 is inapplicable and no country of origin marking is required by this provision. The Federal Trade Commission (“FTC”) has jurisdiction concerning the use of the phrase “Made in the U.S.A.,” or similar words denoting U.S. origin. Consequently, any inquiries regarding the use of such phrases reflecting U.S. origin should be directed to the FTC, at the following address: Federal Trade Commission, 6th & Pennsylvania Avenue, N.W., Washington, D.C. 20508.
HOLDING: The imported toothbrush handle is substantially transformed in the U.S. by combining it with the U.S. manufactured remaining toothbrush pieces as described supra. Therefore, Radius is the ultimate purchaser of the toothbrush handle. The toothbrush handle is excepted from marking provided its container is marked with the country of origin upon importation and it will be used only in the manner described above and not otherwise sold.
Sincerely,
Myles B. Harmon, Director
Commercial Rulings Division