Country of origin marking requirements for a mixture of boron trifluoride and hydrogen gases from the Republic of Georgia and the United States.

September 3, 2015 HQ H262463 CLA-2 OT:RR:CTF:TCM H262463 TSM CATEGORY: Marking Mr. Edward F. Juliano, Jr., Esq. 303 Wyman St., Ste. 300 Waltham, MA 02451 RE: Country of origin marking requirements for a mixture of boron trifluoride and hydrogen gases from the Republic of Georgia and the United States. Dear Mr. Juliano: This is in reference to your letter, dated January 20, 2015, to U.S. Customs and Border Protection (CBP), requesting a ruling concerning the country of origin of a mixture of boron trifluoride gas from the Republic of Georgia and hydrogen gas from the United States. Pursuant to your request, a telephone conference with Headquarters personnel was also held on August 6, 2015. Following the telephone conference, on August 17, 2015, you filed a supplementary submission with this office. FACTS: The merchandise at issue consists of a mixture of boron trifluoride gas and hydrogen gas. The mixture will be produced and packaged in the United States using hydrogen gas of U.S. origin and enriched boron trifluoride gas from the Republic of Georgia. You describe the gas mixture manufacturing process as follows: “In general, the gas mixture is manufactured first by filling boron trifluoride gas from source vessels into receiving vessels to the first desired pressure, then by adding hydrogen gas to the second desired pressure.” You provided information regarding the function served by the addition of the hydrogen gas into the boron trifluoride gas. You state that boron trifluoride gas has been used for many years as a dopant in beamline ion implantation tools used in semiconductor manufacturing. A side effect of using boron trifluoride gas is the erosion and transport of tungsten metal in the implantation tools, which reduces the efficiency of the tools and can limit the life of their components. You claim that the addition of the hydrogen gas into the boron trifluoride gas substantially reduces the erosion of the tungsten metal and extends the life of the tools, while still providing boron trifluoride as a dopant. You further state that no intermediate product is produced and no chemical reaction occurs when the two gases are mixed. Moreover, no new product is created when the two gases are mixed and the end use of the boron trifluoride gas does not change as a result of the mixing. However, in your supplementary submission you also argue that the product resulting from the mixture is significantly improved over boron trifluoride if used alone. Moreover, you request a finding that the above-described gas mixture creates a new and different article that does not require any country of origin markings. ISSUE: What is the country of origin of the mixture of boron trifluoride gas from the Republic of Georgia and hydrogen gas from the United States for marking purposes? 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 its 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.” See United States v. Friedlander & Co., 27 C.C.P.A. 297, 302 (1940). Part 134 of the U.S. Customs and Border Protection (“CBP”) Regulations (19 C.F.R. § 134) implements the country of origin marking requirements and 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 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 [the marking laws and regulations].” A substantial transformation occurs when, as a result of manufacturing process, a new and different article emerges, having a distinct name, character or use, which is different from that originally possessed by the article or material before being subjected to the manufacturing process. See Texas Instruments, Inc. v. United States, 69 C.C.P.A. 142, 681 F.2d 778 (1982). The Court of International Trade’s (CIT) analysis in National Juice Products Ass’n v. United States, 10 CIT 48, 628 F. Supp. 978 (Ct. Int’l Trade 1986), is applicable to this case. In National Juice, the CIT upheld CBP’s decision in Headquarters Ruling Letter (“HQ”) 728557, dated September 4, 1985, in which we concluded 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. By contrast, CBP held in HQ 731685, dated March 15, 1990, that converting imported fruit concentrates and other imported ingredients into fruit drinks in Mexico constituted a substantial transformation. The manufacturing process involved mixing the juice concentrates with other ingredients including water, artificial flavor, sodium benzoate, and food coloring. We held that, considering the totality of the circumstances, a substantial transformation of the foreign ingredients had occurred because “[t]he juice concentrates are subsumed into a product that is no longer considered a juice.” Essentially, a substantial transformation was found because raw ingredients had been converted into a different article of commerce through a process beyond simple combining, packaging or mere diluting. The record indicates that the processing of the subject gas mixture in the United States involves the simple combination of the enriched boron trifluoride gas from the Republic of Georgia and hydrogen gas of U.S. origin. As referenced above, the function of the hydrogen gas is to reduce the erosion of tungsten and extend the life of the beamline ion implantation tools while still providing boron trifluoride as a dopant. The hydrogen gas, in effect, is an additive allowing the implantation tools to function more efficiently and longer. The hydrogen gas does not affect or substantially transform the end use of the boron trifluoride gas. Although in your supplementary submission you argue that the product resulting from the mixture of the two gasses constitutes a new and different article, upon review the CBP laboratory concluded that the addition of the hydrogen gas represents an auxiliary purpose which does not affect the end use of the boron trifluoride gas. The present case differs from HQ 731685, where the original product was converted into a different article of commerce through a process beyond simple combining, packaging or mere diluting. Similarly, although you argue that the instant situation is analogous to the one at issue in NY A86359, dated September 3, 1996, we disagree. In NY A86359, CBP found that a mixture of grape juice and red raspberry juice constitutes a substantial transformation, producing a new article with a new name, character or use. As we concluded above, the fundamental character and end use of the boron trifluoride gas is not altered by the addition of the hydrogen gas. Therefore, we find that the boron trifluoride gas does not undergo a substantial transformation in the U.S. Consequently, we conclude that for the purposes of 19 U.S.C. § 1304, the origin of the boron trifluoride gas must be indicated on the finished mixture. Section 134.26(a), Customs Regulations (19 C.F.R. § 134.26(a)), provides, in pertinent part, the following: If an imported article subject to these requirements is intended to be repacked in retail containers (e.g. blister packs) after its release from Customs custody, or if the port director having custody of the article, has reason to believe that such article will be repacked after its release, the importer shall certify to the port director that: (1) If the importer does the repacking, he shall not obscure or conceal the country of origin marking appearing on the article, or else the new container shall be marked to indicate the country of origin of the article in accordance with the requirements of this part..... ................... The certificate of marking to be provided by the importer to Customs is set forth at 19 C.F.R. 134.26(a). It may be submitted in blanket form to cover all importations of a particular product for a given period, but the certificate must be filed at each port where the article(s) is entered. Since the subject boron trifluoride gas from the Republic of Georgia will be repacked and manipulated in the United States when mixed with hydrogen gas, we find that it is also subject to the requirements of 19 C.F.R. § 134.26. HOLDING: Boron trifluoride gas from the Republic of Georgia is not substantially transformed when it is combined together and mixed with hydrogen gas in the United States. For purposes of 19 U.S.C. § 1304, we find that the country of origin “Republic of Georgia” must be indicated on the mixed gas. We also find that the imported gas at issue is subject to the 19 C.F.R. § 134.26 requirements for imported articles repacked or manipulated. 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 CBP officer handling the transaction. Sincerely, Ieva K. O’Rourke, Chief Tariff Classification and Marking Branch