CLA-2 CO:R:C:M 951024 KCC

Mr. William J. Ramia, Jr.
Alexander International
Memphis International Airport
P.O. Box 30209
Memphis, Tennessee 38130

RE: Sledge Hammer; CFTA; General Note 3(c)(vii)(H); value content requirement; country of origin; marking

Dear Mr. Ramia:

This is in response to your letter dated January 20, 1992, on behalf of IXL Manufacturing Co., Inc., requesting reconsideration of Headquarters Ruling Letter (HRL) 950005 dated January 9, 1992, concerning the eligibility of sledge hammers under the United States-Canada Free Trade Agreement (CFTA) and the country of origin of sledge hammers imported from Canada.

FACTS:

IXL Manufacturing Co., Inc. ("IXL") has re-calculated the costs which will be incurred in manufacturing the sledge hammers. In a letter dated January 17, 1992, IXL re-submitted cost information to you. IXL updated their time studies to reflect changes in their production process, calculating changes in labor cost, material, factory overhead, and administrative costs. The values or costs claimed by IXL as the value of the material originating in the territory of Canada and/or the United States which is consumed in the production of a four pound sledge hammer with a 32 inch handle is .83 Canadian Dollars. Additionally, the claimed direct costs of assembly in Canada stated as total labor and factory overhead amounts to 1.3143 Canadian Dollars and that the claimed administrative overhead amounts to 1.3071 Canadian Dollars. The total cost claimed for the completed sledge hammer imported into the U.S. is 5.5514 Canadian Dollars.

ISSUE:

I. Is the sledge hammer eligible for preferential tariff treatment under the CFTA pursuant to General Note 3(c)(vii)(H), Harmonized Tariff Schedule of the United States (HTSUS)?

II. Do the country of origin and the marking requirements change if the sledge hammer is eligible for preferential tariff treatment under the CFTA? LAW AND ANALYSIS:

I. The United States-Canada Free Trade Agreement

The sole issue to be determined is whether the sledge hammers are "originating goods" pursuant to General Note 3(c)(vii)(H), HTSUS, which states that goods described in subdivision (c)(vii)(G) "shall be considered to have been transformed in the territory of Canada and be treated as goods originating in the territory of Canada if--

(1) the value of materials originating in the territory of Canada and/or the United States that are used or consumed in the production of the goods plus the direct cost of assembling the goods in the territory of Canada and/or the United States constitute not less than 50 percent of the value of the goods when exported to the territory of the United States, and

(2) the goods have not subsequent to assembly undergone processing of further assembly in a third country and they meet the requirement of subdivision (c)(vii)(E) of this note (emphasis added)."

General Note 3(c)(vii)(M), HTSUS, defines the term "value of materials originating in the territory of Canada and/or the United States", General Note 3(c)(vii)(N), HTSUS, defines the term "value of the goods when exported", and General Note 3(c)(vii)(O), HTSUS, defines the items that can be allocated to "the direct cost of assembling the goods." Upon further examination of General Note 3(c)(vii)(H) which applies to assembly operations falling within the exception of General Note (c)(vii)(G)(1) and (2), a producer is limited to those direct costs which are direct costs of assembly. The value content test for these assemblies is clear and should be distinguished from the CFTA value content test that applies to a broader range of direct costs which are direct costs of "processing". The CFTA allows for both direct costs of "processing" and direct costs of "assembly". We consider these to be separate terms.

Based on the re-submitted costs claimed by IXL as the value of originating materials and the direct cost of assembly, the sledge hammers do not meet the 50% value content requirement. The claimed value of the originating materials (handle blank, wedges, etc.) (.83 Canadian Dollars) plus the direct cost of assembling the goods which were identified in the labor and factory overhead (0.4221 Canadian Dollars) are 29.50% of the value of the sledge hammer when exported to the U.S. (4.2443 Canadian Dollars). Therefore, according to the cost factors submitted the sledge hammers do not meet the 50% value content requirement and are not eligible for preferential tariff treatment under the CFTA.

Additionally, for future reference it should be noted that cost figures submitted for CFTA eligibility may be subject to verification by the district director at the port of entry pursuant to section 10.309, Customs Regulations (19 CFR 10.309).

II. Country of Origin and Marking Requirements

Moreover, there is no authority for a change in law governing the country of origin and marking of merchandise for merchandise which is eligible for a tariff preference under the CFTA. Therefore, the existing United States standard for determining the country of origin for purposes of marking as stated in HRL 950005 is to be followed. The sledge hammer head must be individually marked, "Head made in China" and the handle must be marked "Handle made in Canada."

HOLDING:

Based on the cost figures submitted, the sledge hammers are not entitled to a tariff preference under the CFTA pursuant to General Note 3(c)(vii)(H), HTSUS.

The existing United States standard for determining the country of origin for purposes of marking as stated in HRL 950005 is to be followed. The sledge hammer head must be individually marked, "Head made in China" and the handle must be marked "Handle made in Canada."

HRL 950005 is hereby modified as described above.

Sincerely,

John Durant, Director
Commercial Rulings Division