Country of Origin marking of cyanoacrylate

HQ H129155 JANUARY 20, 2011 OT:RR:CTF:TCM H129155 DAC CATEGORY: Marking Mr. Peter D. Battisti Vice President Chemence Inc. 185 Bluegrass Valley Parkway Alpharetta, GA 30005 RE: Country of Origin marking of cyanoacrylate Dear Mr. Battisti: This is in reply to your October 21, 2010, request for a prospective ruling, submitted on behalf of your company, Chemence, Inc. (“Chemence”), concerning the country of origin marking of ethyl cyanoacrylate from China or Taiwan under 19 U.S.C. §1304 when imported for resale within the United States or under the North American Free Trade Agreement (NAFTA) when exported for resale into Canada and Mexico. FACTS: In your letter you state the ethyl cyanoacrylate is imported by Chemence from China or Taiwan in bulk. You state the ethyl cyanoacrylate will be placed in retail packaging in the United States. The retail packaging consists of a bottle, bottle label, a nozzle and a cap. It may also include a blister card, blister packaging and shipping container or box. You also state the ethyl cyanoacrylate may be diluted to adjust the viscosity of the liquid in the United States. The packaging operations consist of filling, capping, labeling, blister packing and boxing. ISSUE: Whether the packaging operations in the United States constitute a substantial transformation. 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 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. 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. Inc., 27 CCPA 297, 302, C.A.D. 104 (1940). Part 134, Customs and Border Protection (CBP) Regulations (19 C.F.R Part 134), implements the country of origin marking requirements and the exceptions of 19 U.S.C. 1304. Section 134.1(b), CBP Regulations (19 C.F.R 134.1(b)), defines "country of origin" as the country of manufacture, production or growth of any article of foreign origin entering the U.S. 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 the marking laws and regulations. A substantial transformation results when a new and different article emerges from the processing having a distinctive name, character or use. U.S. v. Gibson-Thomsen Co., Inc., 27 CCPA 269 (1940). If the manufacturing or combining process is merely a minor one which leaves the identity of the imported article intact, a substantial transformation has not occurred. Uniroyal, Inc. v. United States, 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. In determining whether the combining of parts or materials constitutes 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. Belcrest Linens v. United States, 573 F. Supp.1149 (CIT 1983), aff'd, 741 F.2d 1368 (Fed. Cir. 1984). See also C.S.D. 85-25. However, the issue of whether a substantial transformation occurs is determined on a case-by-case basis. CBP ruled in C.S.D. 80-111, dated September 24, 1979, that a ceiling fan assembled in the United States in assembly line procedures was not substantially transformed in the United States. CBP considered factors such as the nature of the assembly, the amount of skilled labor and specialized equipment involved and the cost of the assembly process. We believe that the Court of International Trade’s (CIT) analysis in National Juice Products Ass’n v. United States, 10 CIT 48, 628 F. Supp. 978 (1986), is applicable to this case. In National Juice, the CIT upheld CBP’s decision in HQ 728557, dated September 4, 1985, in which we held that imported orange juice concentrate was not substantially transformed when it was mixed with water, essential oils, flavoring ingredients and domestic fresh juice in order to produce frozen concentrated orange juice and reconstituted orange juice. CBP found that the manufacturing process did not create an article with a new name, character or use. CBP held, and the CIT agreed, that the manufacturing process did not change the "fundamental character of the product" as "it was still essentially the juice of oranges." See also HQ 562468, dated October 4, 2002.                 In the instant case, as the processes that occur after importation constitute mere dilution, the fundamental character of the product is not altered, and the ethyl cyanoacrylate has not been substantially transformed. The merchandise has not been converted into a different article of commerce with a new name, character or use. Furthermore, we have repeatedly held that the mere packaging of an item does not constitute a substantial transformation. See HQ 561521, dated January 4, 2000. While value may be added by virtue of these operations, the ethyl cyanoacrylate has not under gone a change in name, character or use. See Gibson-Thomsen, supra. Therefore, the imported ethyl cyanoacrylate remains a product of China or Taiwan for country of origin marking purposes. Please also note that ethyl cyanoacrylate may be subject to the requirements of the Toxic Substances Control Act, Administered by the U.S. Environmental Protection Agency. You may contact them at Environmental Protection Agency, Ariel Rios Building, 1200 Pennsylvania, N.W., Washington, D.C., 20460, or telephone at (202) 272-0167. See also www.epa.gov HOLDING: In accordance with 19 U.S.C.§ 1304, the country of origin marking for the ethyl cyanoacylate packaged for retail sale is China or Taiwan and may be marked “Made in China” or “Made in Taiwan” as appropriate. Sincerely, Ieva K. O’Rourke, Chief Tariff Classification and Marking Branch