MAR-2-05 CO:R:C:V 733604 RSD

John Politis, Esq.
Politis, Pollack & Doram
660 Wilshire Place, Suite 404
Los Angeles, California 90005

RE: Reconsideration of HRL 731506, Country of origin marking of imported automotive glass; 19 CFR 134.35

Dear Mr. Politis:

This is in response to your letter dated June 15, 1990, requesting reconsideration of Headquarters Ruling Letter 731506, dated May 1, 1990, submitted on behalf of Mitsubishi International Corporation, concerning the country of origin marking requirements of automotive replacement glass. In addition to your request, we have received other submissions from glass manufacturers and importers, as well as several associations. All of these submissions were carefully analyzed and considered in making our determination.

FACTS:

On May 1, 1990, Customs advised the District Director of Customs in Los Angeles, California, that automotive glass imported by Mitsubishi from Japan for the replacement automotive market must be marked with its country of origin. In that ruling Customs determined that when imported, the glass was already cut to shape and dedicated to use as either a windshield, rear window, or side window and made to fit a particular automobile type and model. It was imported in a finished condition and merely had to be installed. For these reasons, we determined that the glass was not substantially transformed when it was installed into an auto and the ultimate purchaser is the auto owner and not the installer. Because the auto owner who purchases the glass is the last person in the U.S. to receive it in its imported form, we found that it must be marked with its country of origin. Although the ruling indicated that the marking requirements were best met by marking worked into the glass at the time of manufacture, it was not mandated. The marking only had to be sufficiently permanent to insure that in any reasonably foreseeable circumstance it would remain on the glass until it reaches the ultimate purchaser.

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Various arguments have been raised to support the contention that replacement glass should be excepted from country of origin marking. It is contended that the installation is complex and requires special expertise. In this regard, specific information was provided which indicates that it takes skill and special tools and equipment, that it may take a professional installer from one to 7 1/2 hours to replace damaged glass, and that it is not done by "do-it-yourselfers." Because of this, it is maintained that the ultimate purchaser is the installer and not the auto owner. It is also pointed out that the auto owner will not see a marking on the glass until after it is installed. Therefore, it is argued that the purpose of the marking statute of advising the ultimate purchaser of the country of origin of the imported article before its purchase, will not be served. It is also contended that before HRL 731506 was issued, Customs had a long-standing established practice to allow the container in which replacement glass is packaged to be marked with the country of origin, rather than marking the glass itself.

ISSUE:

Does imported replacement automotive glass have to be marked with its 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 imported into the U.S. 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 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. 27 C.C.P.A. 297 at 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

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manufacture, production or growth of any article of foreign origin entering the U.S.

Your submission, and others, agree that the purpose of the marking statute is to advise the ultimate purchaser of the country of origin of the imported article before its purchase so that a person can make a conscious choice if country of origin is an important consideration. It is explained however, that as a practical matter, vehicle owners never see the replacement glass until after it is installed by professional glass installers. This is because replacement glass is not sold in retail outlets such as automotive part stores. Rather it is imported and sold through distributors to body shops and glass installers. The installation is extremely complicated and must be done with care and specialized equipment and tools. Accordingly, it is done by professional installers, not "do-it-yourselfers."

As noted in our ruling of May 1, 1990, no evidence had been submitted that the installation of automotive glass was particularly complex or required a great deal of skill. Based on the considerable evidence now submitted concerning the installation process, it is asserted that the installation makes the glass installer the ultimate purchaser of the glass. This assertion seeks to separate the question of who is the ultimate purchaser from whether the installation of the glass constitutes a substantial transformation. However, the concepts of ultimate purchaser and substantial transformation are intertwined, and a determination of whether there is a substantial transformation must be made to determine who is the ultimate purchaser.

The definition of ultimate purchaser is set forth in section 134.1(d), Customs Regulations (19 CFR 134.1(d)), as generally the last person in the U.S. who will receive the article in the form in which it was imported. The first example of an ultimate purchaser provided in 19 CFR 134.1(d) indicates that if an imported article is used in manufacture, the manufacturer may be the "ultimate purchaser" if he subjects the imported article to a process which results in a substantial transformation of the article, even though the process may not result in a new or different article. 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 who obtains the article after the processing, will be regarded as the "ultimate purchaser."

The case of U.S. v. Gibson-Thomsen Co., Inc., 27 C.C.P.A. 267 (C.A.D. 98) (1940), provides that an article used in manufacture which results in an article having a name, character

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or use differing from that of the constituent article will be considered substantially transformed. Section 134.35, Customs Regulations (19 CFR 134.35), indicates that under the principle of U.S. v. Gibson-Thomsen Co., supra, the manufacturer or processor in the U.S. who converts or combines the imported article into a different article will be considered the "ultimate purchaser" of the imported article within the contemplation of 19 U.S.C. 1304(a), and the article shall be excepted from marking. Only the outermost containers of the imported articles shall be marked.

Therefore, to determine who is the ultimate purchaser of the imported automobile glass, it is necessary to determine if the glass is substantially transformed in the U.S. In HRL 731506, we noted that the glass is imported in a finished condition already cut to size and is merely installed into the auto. Furthermore, it is imported already cut to shape and dedicated to use as either a windshield, rear window, or side window and made to fit a particular automobile type and model. Evidence has now been presented in an effort to establish that installation of replacement glass is a complex undertaking. Although the complexity of the processing is a factor to consider in determining whether a substantial transformation has occurred, it is not determinative. To have a substantial transformation, the U.S. processor must subject the imported article to a process which results in an article with a name, character, or use differing from that of the imported article. In this case, because the imported replacement glass is already cut to the exact dimensions to fit a specific model of auto and the installer in no way changes the glass itself when he installs it into an auto, after installation, the glass still has the same name, character, and use. In other words, the identity of the glass is left intact after installation. Consequently, the installer does not substantially transform the glass and cannot be considered the ultimate purchaser of the glass within the meaning of 19 CFR 134.35. In support of the position that the glass installer is the ultimate purchaser, a ruling regarding imported unmarked transmission gears and other transmission and differential parts, was cited (HQ 732063, January 18, 1988). However, that ruling never addressed the question of who was the ultimate purchaser, and therefore it is not helpful in this case.

Based on the above considerations, we affirm our previous finding that the auto owner, who has replacement glass installed in his/her auto is the ultimate purchaser. As the ultimate purchaser of the glass, the auto owner is entitled to know the country of origin of the glass. Although it is possible that the

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auto owner may not have an opportunity to see the country of origin marking until after the glass is installed, 19 U.S.C. 1304 requires that all articles of foreign origin be marked with the country of origin unless otherwise excepted. Neither the statute nor the implementing regulations provide an exception from country of origin marking for the reason that the ultimate purchaser may not see the marking until after installation or purchase. Moreover, the ultimate purchaser still may want to be informed of the country of origin of the glass after installation, in the event he/she needs to make a future purchase of auto glass or if he/she wants to refer other individuals to a particular glass installer.

It is also claimed that Customs has a long-standing established practice to permit marking of the container in which replacement glass is packaged in lieu of the glass itself. However, no information has been presented to demonstrate this position. Moreover, HQ 731506 was the first time the question regarding the marking of replacement auto glass was addressed. We find marking only the glass packaging would not be sufficient to inform the ultimate purchaser of the country of origin because the ultimate purchaser will probably never see the marking on the packaging.

Several submissions noted that an auto owner purchases not only the glass, but also the installation of the glass. They sell their skills as installers and derive the majority of their profit from installation. Further, they will not sell uninstalled glass to an auto owner. It was also noted that in many instances the auto owner has no choice in purchasing the glass because insurance companies are paying for the glass and tell the auto owner where to take it for the replacement glass to be installed. Since all auto glass must meet federal safefy and quality standards, it is contended that the insurance company selection is ordinarily based on price alone.

While all of this may be true, it does not affect the basic intent of the country of origin marking law. None of these factors is considered sufficient reason for not giving an auto owner the opportunity to ascertain the source of the glass to be installed in his/her auto.

In HQ 731506, we indicated that section 134.41(a), Customs Regulations (19 CFR 134.41(a)), states that as a general rule, marking requirements are best met by marking worked into the article at the time of manufacture. We stated that the marking requirements of 19 CFR 134.41 are best met by marking worked into

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the glass at the time of manufacture which would be visible to the auto owner purchasing the glass. However, we did not mandate that the country of origin marking had to be worked into the glass. The marking only had to be sufficiently permanent to insure that in any reasonably foreseeable circumstance, it would remain on the glass until it reaches the ultimate purchaser unless it is deliberately removed. While one submission urges that sandblasting the country of origin onto glass is the only way to insure that the marking is permanent and that it will be seen, others point out that they now use an adhesive label applied directly to the glass and that it has significant permanence to insure that it will remain on the glass throughout normal handling in distribution, storage, and installation unless it is deliberately removed. Customs believes the industry can best decide on the method of marking. However, we also affirm that the requirements would be best satisfied by marking into the glass at the time of manufacture, be it by sandblasting, etching, painting or any other method. But it is not required. Alternate methods of country of origin marking, such as placing adhesive stickers on the glass would comply with 19 U.S.C. 1304 and 19 CFR 134.41 as long as the importer satisfies the district director at the port of entry that the marking will remain on the glass throughout distribution until it reaches the ultimate purchaser. If the district director has grounds to believe that the marking is being removed before it reaches the ultimate purchaser, it might be necessary to require that the glass be permanently marked.

Another suggested alternative to marking was that the glass installer be required to display the country of origin on the invoice issued to the consumer. Customs does not have the authority to require this nor do we think it could serve as an alternative to marking. However, a glass installer that wanted to ensure that the ultimate purchaser was aware of the country of origin could certainly do this in addition to marking the glass. Another positive step that an importer could take would be to issue instructions to installers not to remove the adhesive label until the ultimate purchaser has had an opportunity to see it. These and other methods could be used to satisfy the district director that the marking will not be removed until it reaches the ultimate purchaser.

Several associations noted that requiring country of origin to be worked into the glass at the time of manufacture would result in a major economic burden on glass manufacturers and, as a consequence, this would be passed on to the auto owner. The

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reason given is the need for changing hundreds of dies for production of replacement glass for older model vehicles. In addition, they contend that large existing stocks of unmarked glass are maintained and that the marking requirement is only for glass to be imported for sale in the U.S. Manufacturers sell the same glass in other countries that do not require marking. Although not specific, they seem to infer that this could cause problems.

To lessen any economic burden, Customs is not requiring that the marking be worked into the glass. In fact, no specific method of marking is being mandated. Any method of marking that will comply with the law and regulations will be acceptable to Customs as long as it remains on the glass until the ultimate purchaser has had an opportunity to see it. No dies need be changed and the cost of labeling existing stocks should be minimal. Customs will however, discuss any particular problem an importer may have on a case-by-case basis.

To allow affected persons an opportunity to use existing stocks and to make appropriate changes needed to comply with this ruling, we are delaying the effective date until April 1, 1991. During the interim period, Customs will allow imported automotive replacement glass to be marked with its country of origin either on the glass or its container.

HOLDING:

We affirm our findings in HQ 731506 that imported replacement automotive glass is not substantially transformed when it is installed into an auto and that the auto owner is the ultimate purchaser. Accordingly, the replacement glass must be marked with its country of origin. The country of origin marking requirement is best met by marking worked into the glass at the time of manufacture. However, the marking may be accomplished by alternative methods, such as stickers on the glass if the district director at the port of entry is satisfied that the marking will remain on the glass until it reaches the ultimate purchaser.

The ruling will be effective with regard to automotive glass entered or withdrawn from warehouse for consumption on or after April 1, 1991.

Customs emphasizes that this ruling applies only to replacement glass that is imported in a finished condition already cut to shape and size for a particular auto. The ruling does not apply to glass imported as original equipment to be

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installed in new vehicles by automobile manufacturers. Likewise, it does not apply to imported glass which must be further processed in the U.S. before it can be installed.


Sincerely,

Harvey B. Fox, Director
Office of Regulation and Rulings