MAR-05 RR:TC:SM 560399 KKV

Robert L. Eisen, Esq.
Paula Smith, Esq.
Coudert Brothers
1114 Avenue of the Americas
New York, New York 10036-7703

RE: Country of origin marking requirements applicable to imported pump castings not substantially transformed by post-importation processing which creates finished pump parts; National Hand Tool; exception to marking; marking obliterated by post-importation processing; 19 U.S.C. 1304(a)(3)(G); 19 CFR 134.32(g); 19 CFR 134.26; HRL 734230; 19 CFR 134.34

Dear Mr. Eisen and Ms. Smith:

This is in response to your letter dated April 10, 1997 (and subsequent submissions dated January 20, 1998 and February 19, 1998), on behalf of Ahlstrom Pumps, L.L.C. ("Ahlstrom"), which requests a binding ruling regarding the country of origin marking requirements applicable to pump castings imported from Finland for further processing the U.S. Photographs of the castings at various stages in the production process were submitted for our examination.

FACTS:

You indicated that Ahlstrom imports a variety of iron and stainless steel pump castings from Finland into the U.S. for further processing. These castings, which range from ten inches to six feet in size, are made into the following types of pump parts: casings, casing covers, impellers, sideplates, adapters and bearing housings.

Once imported, the castings undergo the following operations, although on the face of the documents submitted, we note some inconsistency exists as to the precise combination of operations performed on each type of casting. We are informed that the castings undergo processing in the following manner:

1) TURNING Turning is performed on all of Ahlstrom's imported castings. Castings that will become the larger casings, casing covers and sideplates are turned on a vertical turning mill, while castings that will become impellers, smaller casing covers and sideplates are turned with a lathe. As a result of the turning operation, three to six millimeters of material is removed from each side of the smaller castings and three to ten millimeters is removed from each side of the larger castings.

2) BORING AND/OR MILLING All of the imported castings (with the exception of the impellers) are subject to boring/milling operations which further refine the shape of the castings. The boring and/or milling operations remove, on average, the same amount of material from each casting as the turning operations previously described (i.e., three to six millimeters per side for the smaller castings and three to ten millimeters per side for the smaller castings).

3) DRILLING AND/OR TAPPING Those castings which are destined to become adapters, impellers, side plates, casing covers and bearing housings undergo additional drilling and/or tapping operations. On average, the amount of material removed by the drilling/and/or tapping operations per side is the same as that removed in either the turning or milling operations.

4) BALANCING Castings which are to be used as impellers also undergo balancing, to ensure that the impeller is capable of rotating properly.

5) TESTING Upon completion of each step, a technician performs a series of quality control tests which involve taking precise and accurate measurements of the castings.

Upon completion of the processing detailed above, some of the pump parts are further processed into finished pumps, while others are sold separately as replacement parts. Your current inquiry does not involve the marking of the assembled pumps, but the country of origin marking requirements applicable to the finished pump parts.

Accordingly, no determination is made herein with regard to the country of origin of the finished pumps.

ISSUE:

What are the country of origin marking requirements for imported castings which are further processed in the United States in the manner described above?

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 United States 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 United States 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, 302 (1940). Part 134 of the Customs Regulations implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304. Section 134.41(b), mandates that the ultimate purchaser in the United States must be able to find the marking easily and read it without strain.

"Country of origin" is defined in section 134.1(b), Customs Regulations, as

The country of manufacture, production, or growth of any article of foreign origin entering the United States. 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.

The well-established test for determining whether a substantial transformation has occurred is derived from language enunciated by the court in Anheuser-Busch Brewing Association v. United States, 207 U.S. 556, 562 (1908), which defined the term "manufacture" as follows:

Manufacture implies a change, but every change is not manufacture and yet every change in an article is the result of treatment, labor and manipulation. But something more is necessary, as set forth and illustrated in Hartranft v. Wiegmann, 121 U.S. 609. There must be transformation; a new and different article must emerge, having a distinctive name, character or use.

Simply stated, a substantial transformation occurs "when an article emerges from a process with a new name, character, or use different from that possessed by the article prior to processing." See Texas Instruments, Inc. v. United States, 69 CCPA 152, 681 F.2d 778 (1982) (cited with approval in Torrington Co. v. United States, 764 F. 2d 1563, 1568 (1985)). Under this principle, the manufacturer or processor in the United States who converts or combines the imported article into the different article will be considered the "ultimate purchaser" of the imported article, and the article shall be excepted from marking (See 19 CFR 134.35) However, the outermost containers of the imported articles must be marked (19 CFR 134.35). The issue of whether a substantial transformation occurs is determined on a case-by-case basis.

In determining whether the processing operations constitute a substantial transformation, the issue is the extent of operations performed and whether the parts lose their identity and become an integral part of the new article. See, Uniroyal Inc. v. United States, 3 CIT 220, 542 F. Supp. 1026 (CIT 1982), aff'd, 702 F.2d 1022 (Fed. Cir. 1983). Assembly operations which are minimal or simple, as opposed to complex or meaningful, will generally not result in a substantial transformation. See, Customs Service Decision (C.S.D.) 80-111, C.S.D. 89-129, and C.S.D. 90-51.

In National Hand Tool v. United States, Slip Op. 92-61 (April 27, 1992, aff'd, 989 F.2d 1201 (1993), a country of origin marking case, certain hand tool components used to make flex sockets, speeder handles, and flex handles, were imported from Taiwan. The components were cold-formed or hot-forged into their final shape prior to importation, with the exception of speeder handle bars, which were reshaped by a power press after importation. The grip of the flex handles were also knurled in the U.S., by turning the grip portion of the handle against a set of machine dies that formed a cross-hatched diamond pattern. The components were subject to heat treatment, which increased the strength of the components, sand-blasting (a cleaning process), and electroplating (enabling the components to resist rust and corrosion). After these processes were complete, the components were assembled into the final products, which were used to loosen and tighten nuts and bolts.

The Court of International Trade decided the issue of substantial transformation based on three criteria, i.e., name, character, and use. Applying these rules, the court found that the name of the components did not change after the post-importation processing, and that the character of the articles similarly remained substantially unchanged after the heat treatment, electroplating and assembly, as this process did not change the form of the components as imported. The court further pointed out that the use of the articles was predetermined at the time of importation, i.e., each component was intended to be incorporated in a particular finished mechanic's hand tool. The court dismissed as a basis for a substantial transformation the value of the processing, stating that the substantial transformation test utilizing name, character and use criteria should generally be conclusive in country of origin marking determinations, and that this finding must be based on the totality of the evidence. Based on this test, the court concluded that the processing in the U.S. did not effect a substantial transformation of the foreign hand tool components.

A similar finding was made in Superior Wire v. United States, 867 F.2d 1409 (Fed. Cir. 1989), where the appellate court affirmed the Court of International Trade's holding that no substantial transformation occurred from the multistage processing of drawing wire rod into wire. In that case, the court noted that the "end use of the wire rod is generally known before the rolling stage and the specifications are frequently determined by reference to the end product for which the drawing wire will be used." Accordingly, the court found that the character of the final product was predetermined and that the processing did not result in a significant change in either character or use of the imported material. While the wire rod and wire had different names and identities in the industry, the court concluded that they were essentially different stages of the same product.

Upon careful review of all relevant documentation, we find a similar conclusion must be reached with regard to the pump castings at issue. Although a layer of material is removed from the outer surface of each casting, the removal does not create significant difference in the overall shape of the casting. Upon importation into the U.S., the castings are not rough, generic forms but have the same shape as the finished pump parts. Indeed, we note that Ahlstrom's own sales literature indicates that the manufacturing process begins with "precise castings from our own foundry," a statement which indicates that the articles have a comparatively high degree of refinement at the time the castings left the foundry in Finland. Like the hand tool components in National Hand Tool and the wire rods in Superior Wire, the use of the imported castings is predetermined at the time of importation. As a result, the imported castings do not lose their identity and become an integral part of a new article, as required by the court in Uniroyal, supra; rather, they already have the essential characteristics of finished pump parts at the time of importation. The processing performed in the U.S. upon the imported castings does not create a new and different article, but is a mere continuation of the manufacture of pump parts begun in Finland. Consequently, in the absence of a substantial transformation, the U.S. processor is not the "ultimate purchaser" and the imported castings retain their foreign origin upon completion into finished pump parts.

In these circumstances, Customs would normally require that the articles be marked with their country of origin at the time of importation. However, given the nature of the processing performed upon the castings in the U.S., you assert the applicability of 19 CFR 134.32(g), which excepts from marking those articles to be processed in the United States by an importer or for his account otherwise than for the purpose of concealing the origin of such articles and in such manner that any mark contemplated by part 134, Customs Regulations (19 CFR Part 134) would necessarily be obliterated, destroyed, or permanently concealed. Customs has ruled that articles excepted from marking under these provisions at the time of importation must be marked to indicate the country of origin after processing unless such processing constitutes a substantial transformation. The purpose of such requirement is to ensure that the ultimate purchaser is advised of the country of origin. See, HRL 729434, dated May 23, 1986; HRL 732196, dated May 16, 1989; HRL 732574, dated June 25, 1990 and HRL 733676, dated December 6, 1990.

Upon review, we conclude that the domestic processing operations described above would necessarily obliterate any country of origin marking on the castings at the time of importation. Accordingly, where the outermost container in which the castings are imported into the U.S. is marked with the country of origin of the castings contained within, the imported castings are excepted from individual marking at the time of importation, provided that the certification set forth in section 134.26, Customs Regulations (19 CFR 134.26), is executed, and the containers in which the finished pump parts will reach the ultimate consumer are marked in accordance with the requirements of 19 U.S.C. 1304 and 19 CFR Part 134.

We note, however, that the certification procedures of 19 CFR 134.26 are applicable only to articles which are legally marked at the time of importation. See HRL 734230, dated November 20, 1991. For unmarked articles not included within the scope of 19 CFR 134.26, the separate procedures of 19 CFR 134.34 are applicable. Accordingly, where the outermost container in which the castings are imported into the U.S. is not marked with the country of origin of the castings, the imported castings are excepted from individual marking at the time of importation, provided that the containers in which the articles are repacked will indicate the origin of the articles to an ultimate purchaser in the U.S. and the importer arranges for supervision of the marking of the containers by Customs officers at the importer's expense or such other verification (e.g., certification and the submission of a sample or otherwise) of the marking prior to liquidation of the entry, subject to the discretion of the port director at the port of entry.

HOLDING:

Based upon the information provided, the imported castings which undergo turning, and/or boring/milling, and/or drilling/tapping, and/or balancing and testing are not substantially transformed in the U.S. when made into completed pump parts. Accordingly, the retail purchaser and not the domestic processor is the ultimate purchaser and the castings are subject to country of origin marking.

Based upon the described facts, imported castings which are domestically processed, but not substantially transformed, by operations which remove a layer of material are processed in such a manner that any required origin marking is necessarily destroyed. Accordingly, where the outermost container in which the castings are imported into the U.S. is marked with the country of origin of the castings contained within, the imported castings are excepted from individual marking at the time of importation pursuant to 19 U.S.C. 1304(a)(3)(G) and 19 CFR 134.32(g) provided that the certification set forth in section 134.26, Customs Regulations (19 CFR 134.26), is executed, and the containers in which the finished pump parts will reach the ultimate consumer are marked in accordance with the requirements of 19 U.S.C. 1304 and 19 CFR Part 134. Where the outermost container is not marked, the imported castings will be excepted from individual marking pursuant to 19 U.S.C. 1304(a)(3)(G) and 19 CFR 134.32(g) provided that the containers in which the articles are repacked will indicate the origin of the articles to an ultimate purchaser in the U.S. and such marking on the containers is verified by Customs prior to liquidation of the entry, at the discretion of the port director at the port of entry.

The holding set forth above applies only to the specific factual situation and merchandise identified in the ruling request. This position is clearly set forth in section 19 CFR 177.9(b)(1), which states that a ruling letter is issued on the assumption that all information furnished in connection with the ruling request and incorporated therein, either directly, by reference, or by implication, is accurate and complete in every material respect. Should it be subsequently determined that the information furnished is not complete and does not comply with 19 CFR 177.9(b)(1), the ruling will be subject to modification or revocation. In the event there is a change in the facts previously furnished, this may affect the determination of origin or eligibility of the articles for an exception to marking requirements of 19 U.S.C. 1304.

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

Sincerely,

John Durant
Director
Commercial Rulings Division