Request for a marking exemption for eyeglass fronts containing nonprescription lenses and temples, used in the United States (U.S.) to produce sunglasses.

 N301614 December 6, 2018 MAR-2 OT:RR:NC:N2:208 CATEGORY: MARKING Mr. Rick Van Arnam Barnes, Richardson & Colburn, LLP 100 William Street, Suite 305 New York, NY 10038 RE: Request for a marking exemption for eyeglass fronts containing nonprescription lenses and temples, used in the United States (U.S.) to produce sunglasses. Dear Mr. Van Arnam: This is in response to your letter dated November 2, 2018, on behalf of FGX International, Inc. (FGX), requesting a ruling on whether imported components of nonprescription (also referred to as "plano") sunglasses are required to be individually marked with the country of origin if they are later to be processed in the U.S. by a U.S. manufacturer. FGX requests an exemption from country of origin marking for fronts containing nonprescription lenses and for temples, also known as sidepieces, which come in pairs and are the part of the frame that goes along the side of the head, imported from China. Unmarked samples of sunglass fronts with nonprescription lenses and temples were furnished with the request for a ruling. The imported goods are sunglass fronts containing nonprescription lenses and temples. Both the fronts with the lenses and the temples, which are imported separately, are from China. In the U.S., there is a visual/functional inspection of fronts and temples and impact resistance verification. After that, an FGX personnel hand-assembles finished sunglasses by fitting the temples into the fronts until assembly is complete and secure. Next, the lenses are cleaned and there is a final visual inspection of the finished sunglasses. Lastly, the finished glasses are inserted into poly bags and are packaged and inserted back to storage cartons. FGX wishes to import the sunglass fronts with nonprescription lenses and the temples without individually marking the country or origin on each frame or nonprescription lens. They believe that a substantial transformation occurs in the United States after importation. Section 134.35, Customs Regulations (19 CFR 134.35), is cited which provides that the manufacturer or processor in the US 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 meaning of Section 304 (a) of the Tariff Act of 1930, as amended, and that the article is excepted from individual marking. The outermost containers of the imported articles must be marked with the country of origin. 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 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. Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304. Section 134.41(b), Customs Regulations (19 CFR 134.41(b)), mandates that the ultimate purchaser in the U.S. must be able to find the marking easily and read it without strain. Section 134.1(d), defines the ultimate purchaser as generally the last person in the U.S. who will receive the article in the form in which it was imported. 19 CFR 134.1(d)(1) states that if an imported article will be 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. 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 or use differing from that of the constituent article will be considered substantially transformed and that the manufacturer or processor will be considered the ultimate purchaser of the constituent materials. In such circumstances, the imported article is excepted from marking and only the outermost container is required to be marked. 19 CFR 134.35 is noted. For tariff purposes, the courts have held that 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. United States v. Gibson-Thomsen Co., Inc., 27 CCPA 267, C.A.D. 98 (1940); National Hand Tool Corp. v. United States, 16 CIT 308 (1992), aff’d, 989 F. 2d 1201 (Fed. Cir. 1993); Anheuser Busch Brewing Association v. The United States, 207 U.S. 556 (1908) and Uniroyal Inc. v. United States, 542 F. Supp. 1026 (1982). However, if the manufacturing or combining process is merely a minor one that leaves the identity of the article intact, a substantial transformation has not occurred. Uniroyal, Inc. v. United States, 3 CIT 220, 542 F. Supp. 1026, 1029 (1982), aff’d, 702 F.2d 1022 (Fed. Cir. 1983). Substantial transformation determinations are based on the totality of the evidence. See Headquarters Ruling (HQ) W968434, date January 17, 2007, citing Ferrostaal Metals Corp. v. United States, 11 CIT 470, 478, 664 F. Supp. 535, 541 (1987). Customs has previously ruled on the marking consequences of various levels of processing performed to eyeglass frame components. In Headquarters Ruling Letter (HRL) 734663, dated September 4, 1992, eyewear fronts and temples were imported in a partially finished condition from various suppliers worldwide. Upon arrival in the United States, the components were colored and assembled into frames. Other minor pieces were also added. Customs decided that the color treatment and subsequent assembly of the partially finished frames did not amount to a substantial transformation of the product. See, HRL 728504, dated October 15, 1985 (the mere assembly of imported frames did not constitute a substantial transformation and the country of origin marking was required on the imported fronts and temples) and HRL 709266, dated July 11, 1978 (assembly of eyeglass frames did not constitute a substantial transformation). In this case, the imported sunglass fronts with nonprescription lenses and temples are not substantially transformed into an article with a new name, character or use as a result of the minor U.S. processing. Therefore, the imported fronts and temples are not exempt from individual country of origin marking and must be marked in accordance with the marking requirements in 19 U.S.C. § 1304(a)(1)-(2) and 19 C.F.R. Part 134. This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 CFR Part 177). A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Lisa Cariello at [email protected]. Sincerely, Steven A. Mack Director National Commodity Specialist Division