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HQ 733196
August 10, 1990

MAR-2-05 CO:R:C:V 733196 KG

CATEGORY: MARKING

Mr. Fred Sly
O-Ratchet, Inc.
1362 Exchange Drive
Richardson, Texas 75085-0296

RE: Country of origin marking of imported ratchet handle; substantial transformation; forging; 19 CFR 134.35.

Dear Mr. Sly:

This is in response to your letters of March 9, and July 16, 1990, requesting a country of origin ruling regarding imported forgings to be used in the manufacture of ratchets.

FACTS:

The forging will be made in Korea or Taiwan. The imported forging has the general shape of a ratchet handle. The processes done in the U.S. include: machining, cleaning, polishing, marking, heat treatment, vibratory polish, cleaning, muratic acid bath, rinse, nickel plate, rinse, chrome plate, and rinse. Heat treatment is required for the metal to be adequate with regard to strength. Plating is necessary to prevent rusting. The completed ratchet handle then has to have the following components or parts added to it in the U.S. in order to be used: the inner body, pawl, reverser, pawl pin, spring, ball, and two retaining rings.

The cost of the forging overseas is $1.89 while the cost of the U.S. processing is $1.21. The cost of the other U.S.-made ratchet parts is $2.70. The reverser, which is made in Taiwan, costs $0.18.

ISSUE:

Whether the imported rough forging is substantially transformed in the U.S. and therefore, is excepted from individual country of origin marking.

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. The Court of International Trade stated in Koru North America v. United States, 701 F.Supp. 229, 12 CIT (CIT 1988), that: "In ascertaining what constitutes the country of origin under the marking statute, a court must look at the sense in which the term is used in the statute, giving reference to the purpose of the particular legislation involved. The purpose of the marking statute is outlined in United States v. Friedlaender & Co., 27 CCPA 297 at 302, C.A.D. 104 (1940), where the court stated that: "Congress intended 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."

Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304. An ultimate purchaser is defined in section 134.1, Customs Regulations (19 CFR 134.1), as "generally the last person in the United States who will receive the article in the form in which it was imported." The regulation further provides 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.

Under section 134.35, Customs Regulations (19 CFR 134.35), an imported article that is substantially transformed in the U.S. is excepted from individual country of origin marking and only the outermost containers of the imported article must be marked with the country of origin. An article is described in U.S. v. Gibson-Thomsen Company, Inc., 27 CCPA 267 (1940), as being substantially transformed because it is "so processed in the U.S. that it loses its identity in a tariff sense and becomes an integral part of a new article having a new name, character and use."

Imported rough forgings made into flanges and fittings in the U.S. were found to be substantially transformed in the U.S. in Midwood Industries, Inc. v. United States, 64 Cust.Ct. 499, 313 F.Supp. 951 (1970). In that case, the court pointed out that the rough forgings have no commercial use in their imported condition because the forgings are used to connect pipes of a matching size and in their imported state, the forgings had no connecting ends.

In HQ 731572 (July 25, 1989), Customs held that imported rough forgings made into sockets, socket wrench extensions and adapters in the U.S. were substantially transformed. The domestic processing included: lathing, drilling, centerless grinding, marking, heat treatment, performing hardness and torque strength testing, sand blasting, tumbling, chemical vibrating, acid dipping, plating, painting and quality control testing. The rough forgings were considered substantially transformed because a significant amount of machining was done which included machining to achieve the actual dimensions of the tools.

Customs ruled in HQ 732487 (September 20, 1989), that an imported rough forging made into a wrench in the U.S. was substantially transformed. The processes involved in the U.S. included: coining, shot blasting, polishing, grinding, stamping, tempering, chrome plating and calibrating both ends of the wrench. The U.S. processing constituted 55-60% of the total cost of the finished wrench.

Raw forgings for automotive master cylinders and automotive wheel cylinder castings were held to be substantially transformed in HQ 730123 (February 5, 1990). In that ruling, Customs pointed out that the imported parts were subjected to a substantial processing which included: drilling, boring, reaming, tapping and assembly with other U.S.-made parts and which was costly and complex. The imported master cylinder casting is 25.5 % of the finished product and the imported wheel cylinder casting is 15.8%.

In this case, the cost of the U.S.-made parts added in the U.S. is nearly 50% of the finished product. When added with the cost of the U.S. processing, nearly 70% of the manufacturing cost of making this product are for either U.S. processing or for U.S.-made parts which are added to the forging to complete the product. The processing done in the U.S. includes machining, and nickel and chrome plating. While no details were provided concerning the extent of the machining operations performed in the U.S., the processing done in the U.S. considered along with the number and value of U.S.-made parts attached to the finished product, particularly the pawl, constitute a substantial transformation of the imported forging. A ratchet is a piece of machinery which consists of a wheel or a bar with which a pawl engages. A pawl is a pivoted object adapted to engage with the teeth of a ratchet wheel or the like so as to prevent or impart motion. The imported forging involved here is made to hold the pawl. It clearly does not become a ratchet until the pawl is attached to it. In the case, the pawl is made in the U.S. and attached to the ratchet handle in the U.S. The characteristics of the pawl and the parts used to hold the pawl in place so it is functional, which are all U.S.-made, are the very essence of the finished product. Based on all the above considerations, this forging is considered substantially transformed in the U.S. into a ratchet, a new and different article of commerce with a new name, character and use.

HOLDING:

The imported forging is substantially transformed in the U.S. Pursuant to 19 CFR 134.35, the U.S. manufacturer is considered the ultimate purchaser of the forging. Therefore, only the container in which the forgings are imported are required to be marked with the country of origin of the forging.

Sincerely,

Marvin M. Amernick
Chief, Value, Special Programs

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