HQ 0734172 - Internal Advice request concerning the country of origin marking requirements for "TRAC" and "XAGA" cable insulation kits; substantial transformation; 19 CFR 134.35 - United States International Trade Commision Rulings

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HQ 734172

December 16, 1992

MAR-2-05 CO:R:C:V 734172 AT

CATEGORY: MARKING

District Director of Customs
101 East Main Street
Norfolk, Virginia 23510

RE: Internal Advice request concerning the country of origin marking requirements for "TRAC" and "XAGA" cable insulation kits; substantial transformation; 19 CFR 134.35

Dear Sir:

This is in response to your memorandum dated March 19, 1991, forwarding the February 1, 1991, internal advice request of counsel on behalf of Raychem Corporation (Raychem), on the country of origin marking requirements for certain Raychem "TRAC" and "XAGA" cable insulation kits. Samples of the "TRAC" and "XAGA" cable insulation kits and a copy of Raychem's practice and installation instructions for each kit were submitted for review. A conference was held at Customs Headquarters on August 1, 1991, with counsel for Raychem and members of my staff. On August 21, 1991, supplemental information was submitted by counsel for Raychem. By letter dated May 8, 1992, Raychem through counsel, requested that certain information in the ruling be given confidential treatment. The confidential information is bracketed and will not be disclosed in copies of this ruling made available to the public.

With respect to the TRAC kits, counsel, by letter dated September 24, 1991, informed Customs that due to a recent management decision by Raychem the manufacturing of the end cap shells (a foreign component) will be moved from Denmark to the United States, and therefore all TRAC end caps will now be of U.S. origin. Counsel also stated that while Raychem will still be importing two sizes of TRAC central bodies (a foreign component), it is phasing out the use of imported central bodies and will soon manufacture all TRAC central bodies in the U.S. On August 7 1992, your office informed Headquarters staff by telephone that Raychem is no longer importing components for the TRAC insulation kits, and therefore no internal advice is necessary with respect to these kits. Accordingly, the issues raised in this internal advice are limited to the country of origin marking requirements for the XAGA kits.

FACTS:

Each XAGA kit is manufactured in the U.S. by Raychem and is comprised of domestic components and specifically designed foreign components from Denmark, Belgium and Ireland. The kits are used to create an on-site and environmentally-sealed enclosure around aerial, surface, or subterranean cable splices, thus protecting them for the long term against damaging environmental elements such as water, dirt, wind, rodents, etc. Raychem sells each kit as a unit for use by telecommunication companies who regularly make and protect cable splices.

Counsel states that pursuant to a meeting between Mr. Bill Brannon, Distribution Manager of the Raychem Telecommunications Division (Raychem Telecom) and Assistant District Director (Norfolk District) David A. Hostetler, Raychem and Customs agreed to a certain marking scheme to be used until a final decision has been made on this request. Specifically, Raychem will mark the subject kits with the country of origin in the following manner:

Assembled in USA Containing
Components Imported From
Denmark, Belgium or Ireland

The XAGA Kit

The XAGA kits are essentially designed to enclose non- pressurized polyethylene (insulated air core or filled) surface and subterranean cables. Each kit contains thirteen groups of items, three of which (the wrap-around sleeves, metal channels and branch-off clips) contain imported elements. The remainder of the kit's contents are of domestic origin and include liners, sealant strips, abrasive strips and a variety of clips. Counsel states that the XAGA customer uses the kit as follows: the wrap- around XAGA sleeve and supporting wrapping components are placed around the cable splice bundle. The sleeve is fastened lengthwise at the top by its closure rails, joined by the metal channel strip. The branch-off clips are used to close the ends of multiple cable splice bundles. Direct heat of a blow-torch is then directly applied to the wrap-around sleeve, and the sleeve material shrinks forming a skin-tight jacket around the cable or splice package, protecting it from damaging environmental elements.

Counsel claims that the manufacturing of the XAGA closure device involves []. Counsel also claims that based on the total average standard cost per kit as calculated for fiscal year 1990 and for 1991, the further manufacturing and processing (measured by labor plus overhead at Raychem's plant) of the imported articles account for the majority of the cost in producing an XAGA kit. For example in 1990 the manufacturing and processing of the imported articles accounted for [] percent of the cost of the entire kit and [] percent for 1991. Based on these considerations counsel contends that through this manufacturing process, the imported polyethylene sheet is substantially transformed by Raychem from a commodity product into specially designed wrap-around XAGA sleeves, the essential component of the XAGA kit which is identified to this highly specialized use. Furthermore, the finished wrap-around sleeve, the metal closure channel and branch-off clips are then combined in the U.S. with additional specially-designed domestic components and installation instructions.

ISSUE:

Whether the imported items are substantially transformed when they are combined in the U.S. with domestic components in the manufacture of the XAGA insulation kits in the manner described above.

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 1120 (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. Section 134.35, Customs Regulations (19 CFR 134.35), states that the manufacturer or processor in the U.S. 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 contemplation of 19 U.S.C. 1304 and the article shall be excepted from marking. The outermost containers of the imported articles shall be marked. As the issue of whether a substantial transformation occurs is for marking purposes a question of fact, it is determined on a case-by-case basis.

Substantial transformation occurs when an article loses its identity and becomes a new article having a new name, character or use. United States v. Gibson-Thomsen Co., 27 C.C.P.A. 267 at 270 (1940), National Juice Products Association v. United States, 10 CIT 48, 628 F.Supp. 978 (CIT 1986).

In Gibson-Thomsen, the court held that imported wood brush block and toothbrush handles which had bristles inserted into them in the U.S. lost their identity as such and became new articles having a new name, character and use. One of the factors considered by the court in reaching its conclusion was that the domestic bristles used were "by far the most valuable element." Also, the court looked at whether the imported article loses its identity as such when combined with other articles. In that case, the court concluded that wood handles were material to be used in the manufacture of toothbrushes and hairbrushes. The court was also concerned that when an imported article was combined with a domestic material, that the ultimate purchaser not be confused into thinking that the domestic article was made in a foreign country. Therefore, the court concluded that a mere material to be used in the manufacture of a new article having a new name, character and use, and which became an integral part of the new article would not be required to be marked.

In this case, three components: polyethylene sheet, metal closure channel and branch off clips, of each XAGA kit are imported into the U.S. to be further processed and combined with domestic components into the finished insulation kits. As in Gibson-Thomsen the imported polyethylene sheet is substantially transformed in the U.S. in that the sheet loses its identity when further processed and combined with the other domestic components into the finished article. As imported, the polyethylene sheet has no specific function other than being a commodity product. However, after the [] is completed the sheet is transformed into specifically designed wrap-around XAGA sleeves which can only be used with the XAGA kit. The finished product is a sleeve with sealant properties which can be used to environmentally seal cable splices.

Unlike the polyethylene sheet, the imported metal closure channels and branch-off clips are completely finished articles when imported into the U.S. requiring no further processing. There is no manufacturing or processing of the channels or clips besides simply placing the articles into a cardboard container during the repackaging operation. Placing these two components into a cardboard container a long with other domestic and foreign articles is a very minor operation which is not complex, requires no skill and is not time-consuming. Furthermore, once the metal channels and branch-off clips are combined in the U.S. with other domestic and foreign counterparts, their name, character, and use are the same as when imported. Accordingly, the metal channels and branch-off clips are not substantially transformed when combined with the other domestic and foreign components into the finished installation kit and individual marking is required.

However, in T.D. 91-7 (January 16, 1991), Customs noted that in certain circumstances, the marking of every item in a collection of goods may not be consistent with the purpose of section 1304, or may be impractical and/or undesirable. This may be because one or more items in the collection are relatively insignificant and would have no influence on the purchasing decision, because the items in the collection are too numerous, making it impractical to specify the country of origin of each item, or for various other reasons. Accordingly, Customs stated that it will continue to employ a "common sense" approach to determine the marking requirements applicable to articles which comprise a collection of imported and domestic goods.

An example of this approach is found in HQ 555365 (September 7, 1990), which concerned the tariff treatment and country of origin marking requirements applicable to U.S.-made junction boxes packaged abroad with foreign-made screws (three to a box) and returned to the U.S. In that ruling, Customs found that the foreign screws were excepted from the requirements of section 1304 even though nothing was being done to the screws other than packaging them with U.S. junction boxes. Applying a "common sense" approach, Customs concluded that marking of the screws was not required because they lost their separate identity and became an integral part of the U.S.-origin junction boxes as a result of their inclusion in the kit. Customs also recognized that what the ultimate purchaser in the U.S. was buying was a junction box kit and not individual screws, and that the marking of the screws would not be consistent with the purpose of section 1304.

Similarly, in this case, applying the common sense approach, we find that requiring the metal channels and branch-off clips to be individually marked with the country of origin would not be consistent with the purpose of section 1304. Like the screws in HQ 555365, both the metal channels and branch-off clips lose their separate identities and become an integral part of the finished insulation kit as a result of their inclusion in the kit. Also, both components are used to fasten the polyethylene sheet (as the screws were used to fasten the junction box), around the cable splice so that once heated the sheet because of its sealant properties will form a permanent seal around the splice. In our opinion an ultimate purchaser in the U.S. who is buying the cable insulation kit is interested in the sealant properties of the polyethylene sheet and is not concerned about minor fastening components such as the metal channels and branch- off clips when making his purchasing decision. Accordingly, neither the metal channels or the branch-off clips are required to be individually marked, nor is the packaging of the finished kit required to be marked to indicate the country of origin of these components. However, the outermost containers in which the metal channels and branch-off clips are imported must be marked with the country of origin.

HOLDING:

The imported polyethylene sheets which are further processed and combined in the U.S. with other foreign and domestic components into finished XAGA insulation kits lose their separate identity and are substantially transformed. Accordingly, pursuant to 19 CFR 134.35, the individual imported polyethylene sheets are excepted from country of origin marking and only the container in which they are packaged must be marked with the country of origin.

The imported metal channels and branch-off clips are not required to be marked when included in the XAGA kit. Applying the common sense approach enumerated above, requiring such marking would not be consistent with the purpose of section 1304 since both the metal channels and branch-off clips are minor components and each component becomes an integral part of the finished insulation kit as a result of their inclusion in the kit. However, the outermost containers in which the metal channels and branch-off clips are imported must be marked with the country of origin.
However, for this marking to be acceptable, you must be satisfied that the ultimate purchaser (Raychem), will receive the imported articles in their original unopened properly marked containers and that the imported articles will be sold only in the manner described above.

Sincerely,

John Durant, Director

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