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HQ 731963

July 26, 1989

MAR-2-05 CO:R:C:V 731963 KG

CATEGORY: MARKING

Howard Shube
Shube's Manufacturing, Inc.
2010 Ridgecrest Drive, S.E.
Albuquerque, New Mexico 87108

RE: Country of origin marking requirements for silver jewelry

Dear Mr. Shube:

This is in response to your letter of December 2, 1988, requesting a ruling on the country of origin marking requirements for silver jewelry. We regret the delay in responding to your inquiry.

FACTS:

You propose to import silver earrings and rings from Thailand and have the items hand-faceted in the U.S. Hand- faceting is a process where a worker using a high-speed rotating wheel which is tipped with a very small diamond, takes each individual piece and cuts away small pieces of the silver in order to create individual facets in the silver. This process gives a jewel-like luster to each individual facet. Each piece has between 10 and 40 or more individually cut facets. The pieces are then lacquered with a clear acrylic lacquer to preserve their finish.

You have submitted examples of 4 styles of rings both before and after the rings are hand-faceted.

ISSUE:

Whether silver jewelry imported from Thailand and hand- faceted in the U.S. is required pursuant to 19 U.S.C. 1304 to be marked with its country of origin.

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 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., 27 C.C.P.A. 297 at 302 (1940).

Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304. The term "country of origin" as used in 19 CFR Part 134 is defined in 19 CFR 134.1(b), Customs Regulations (19 CFR 134.1(b)), 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 this part.

A substantial transformation occurs when articles lose their identity and become new articles having a new name, character or use. United States v. Gibson-Thomsen Co., 27 C.C.P.A. 267 at 270 (1940). Ruling HQ 555105 (October 31, 1988), cited in your letter, discusses whether the faceting operation for pewter satisfies the "further processing" requirement imposed under item 806.30, Tariff Schedules of the United States (now subheading 9802.00.60, Harmonized Tariff Schedule of the United States) for tariff classification purposes and does not address the question of whether or not the faceting satisfies the substantial transformation test enunciated in U.S. v. Gibson-Thomsen Co. Satisfaction of a statutory requirement imposed for tariff purposes is not a determinative factor in considering whether or not an imported article has been substantially transformed. Only an examination of the imported article and its manufacturing process to ascertain whether the imported article has been substantially transformed into a new article having a new name, character or use will determine whether or not the article has been substantially transformed for the purposes of country of origin marking.

Based upon our examination of the samples, we are of the opinion that the hand-faceting process does not result in a change of name or use of the jewelry. The rings, in their imported condition, are wearable by a retail consumer without any further processing and have the same use as the hand-faceted ring. Therefore, the hand-faceting process must change the character of the imported article to render a substantial transformation. In Koru North America v. U.S., 12 CIT ___, 701 F. Supp. 229 (CIT 1988), the Court of International Trade held that fish processed into frozen fish fillets were substantially transformed. The Court looked closely at the character of the fish both before and after processing. Important factors considered were: the appearance and shape of both products; sale in separate markets; an increase in shelf life and a difference in tariff classification.

The hand-faceted ring does have a different appearance and a slightly different shape than the imported ring of the same style. However, the style of the ring does not change and as stated above, the imported ring is wearable and could be sold in the same market as the hand-faceted ring. Further, there is no change in character apart from the cosmetic change in appearance. There was not enough information submitted about the silver content of the rings to determine the tariff classification of the imported article or the hand-faceted article.

The cosmetic difference in appearance in and of itself is not significant enough to substantiate a finding of a change in character upon which to base a finding of substantial transformation. After careful consideration of the facts, we are of the opinion that the imported ring is not substantially transformed by the hand-faceting process. Therefore, the importer is required by 19 U.S.C. 1304 and 19 CFR Part 134 to mark the rings to indicate that the country of origin is Thailand.

HOLDING:

The imported rings are not substantially transformed by the hand-faceting process which merely changes the cosmetic appearance of the rings. The importer is required by 19 U.S.C. 1304 and 19 CFR Part 134 to mark the rings to indicate that the country of origin is Thailand.

Sincerely,

John Durant
Director,

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