HQ 0734629 - Country of origin marking of door lock set; keys; combining; substantial transformation; 19 CFR 134.14; 19 CFR 134.32(m). - United States International Trade Commision Rulings

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HQ 734629
October 1, 1992

MAR-2-05 CO:R:C:V 734629 KR

CATEGORY: MARKING

Mr. William San Antonio
Marks USA Hardware Inc.
5300 New Horizons Boulevard
Amityville, NY 11701

RE: Country of origin marking of door lock set; keys; combining; substantial transformation; 19 CFR 134.14; 19 CFR 134.32(m).

Dear Mr. San Antonio:

This is in response to your letter dated May 11, 1992, requesting a country of origin ruling regarding a door lock set, where the cylinder mechanism is imported from Taiwan and then combined with other pieces, mechanisms, knobs and plates which are manufactured in the United States. A sample of the lock set including the imported cylinder was submitted for examination.

FACTS:

You state that you import cylinder lock mechanisms from Taiwan. Attached with the cylinder are keys which are made in the U.S. and shipped to Taiwan where they are cut to match the cylinder. After importation the cylinder is combined with other parts to create a door lock set. All the remaining parts of the lock are manufactured in the United States. The United States manufactured pieces include: two door knobs, two door plates (one with a twisting lock lever), a doorjamb plate, a lock body (an enclosed box containing the deadbolt, pressure retractable bolt, lock switch, and internal mechanisms to operate the knobs so as to retract the bolts), assorted screws, and written directions. The only piece which has a country of origin marking is the lock body which states in raised molded in letters "MADE IN USA". The lock set comes packaged in a box with the name of the lock and the name of the company "MARKS USA" printed on the box as well as the company address. The lock pieces are combined and sent to the actual installer of the door.

ISSUES:

1. Whether the imported lock cylinder is substantially transformed when it is combined in the United States in the manner described above.

2. Whether the keys which are manufactured in the U.S. and sent abroad to be cut and returned to the U.S. must be marked to show the country where the keys were cut.

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. Frielaender & 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.

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); National Juice Products Association v. United States, 628 F. Supp. 978, 10 CIT 48 (CIT 1986); Koru North America v. United States, 701 F. Supp. 229, 12 CIT 1120, (CIT 1988). Two court cases have considered the issue of whether imported parts combined in the U.S. with domestic parts were substantially transformed for country of origin marking purposes. In the first case, 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. The second case involved imported shoe uppers which were combined with domestic soles in the U.S. The imported uppers were held in Uniroyal, Inc. v. United States, 542 F. Supp. 1026, 3 CIT 220 (CIT 1982), to be the "essence of the completed shoe" and therefore, not substantially transformed.

In HQ 731432 (June 6, 1988), customs set forth some factors to be considered in determining whether imported goods combined in the U.S. with domestic products were substantially transformed for country of origin marking purposes. The following six factors were considered:

1) whether the article is completely finished;

2) the extent of the manufacturing process of combining the imported article with the domestic article as compared with the manufacturing of the imported article;

3) whether the article is permanently attached to its counterparts;

4) the overall importance of the article to the finished product;

5) whether the article is functionally necessary to the operation of the finished article, or whether it is an accessory which retains its independent function; and

6) whether the article remains visible after the combining.

These factors are not exclusive and there may be other factors relevant to a particular case and no one factor is determinative. See HQ 728801 (February 26, 1986).

In a case similar to the instant situation, HQ 734440 (March 30, 1992), Customs used these six factors to determine that a lock apparatus was substantially transformed in the U.S. when combined with the remaining mechanisms of the lock. The lock apparatus was only part of the internal working of the whole of the lock. Unlike MARKS USA, the lock apparatus was permanently attached to the remaining pieces and was not visible once assembled. The lock apparatus was functionally necessary to the operation of the finished article, and not an accessory retaining its independent function. The predominant expense of the assembled lock was in the parts produced in the U.S. The imported piece was a generic mechanism which was inserted into remaining pieces which required extensive manufacturing and development, and which received patents in the U.S. and Taiwan.

In another similar case, HQ 734227 (June 26, 1992), Customs found that imported lever handles attached to U.S. lock sets, when the lever handles must be removed to install and then reattached, are not substantially transformed. Customs found that even though the levers were only 10 per cent of the total cost of the lock set and were essential to the function of the lock set; the assembly operation was not complex or requiring a great deal of skill, at the time of purchase the levers were not attached in a permanent manner but were disassembled at the time of installation, and the levers remained visible after assembly. Therefore, the levers were not substantially transformed and were required to be marked with their country of origin.

In HQ 734219 (September 3, 1991), Customs applied the six factors and ruled that imported water pans and charcoal pans were not substantially transformed in the U.S. by combining them with other domestic and foreign components during a repackaging operation in the U.S. of smoker/grill units. Customs stated that the water pans and charcoal pans were completely finished articles when imported, there was no extensive manufacturing process involved in combining the pans with its other domestic and foreign counterparts and that placing the pans into a cardboard container along with other domestic and foreign articles was a minor operation which was not complex, required no skill and was not time-consuming. Customs also stated that the pans where not permanently attached to the smoker/grill unit during the combining process nor where they permanently attached once assembly of the unit was completed by the consumer. Moreover, Customs stated that the pans were functionally necessary to the use of the smoker/grill unit in that the unit could not perform the essential operations of barbecuing, smoking, roasting or steaming without the pans.

In this situation, the lock cylinder is not substantially transformed after entry into the U.S. The lock cylinder is not attached to the remaining pieces of the lock set until after it is received by the installer. The lock cylinder does not lose its separate identity when combined with the remaining pieces. The cylinder remains visible even after assembly by the installer. The lock cylinder is also replaceable if a change of key is desired. The attachment process is a simple screw mount, that is easily screwed in, or out to replace. Even though the predominant expense of the lock is in the parts produced in the U.S., this fact is not determinative.

Based on our consideration of all these factors, we conclude that the lock cylinder is not substantially transformed in the U.S. as a result of combining it with the U.S. manufactured pieces. Accordingly, we find that Marks USA is not the ultimate purchaser of the lock cylinder under 19 CFR 134.35. Section 134.1(d), Customs Regulations (19 CFR 134.1(d)), defines the ultimate purchaser as generally the last person in the U.S. who will receive the article in the form in which it was imported. The definition then gives examples of who might be the ultimate purchaser if the imported article is used in manufacture, if the imported article is sold at retail in its imported form, the purchaser at retail is the ultimate purchaser. Since the lock cylinder is shipped to the installer in the same form in which it was imported, in a separate bag, unattached the remaining pieces, it is not substantially transformed and is not considered to have undergone a change in its imported form. Therefore, the owner of the building in which the door is installed or the installer is the ultimate purchaser, depending on how the door is sold. Therefore, the lock cylinder must be individually marked with its country of origin. Because the lock cylinders are combined with domestic parts before delivery to the ultimate purchaser, the lock cylinders should be marked in a manner which clearly shows that the origin indicated is that of the lock cylinders alone (e.g. "Lock Cylinder Made in Taiwan"). See 19 CFR 134.14. Upon entry the individual lock cylinder must be marked with the country of origin, Taiwan. In addition, because the lock cylinder will be repacked in the U.S. prior to sale to the ultimate purchaser the certification requirements of 19 CFR 134.26 apply.

However, if certain conditions are met, the district director may authorize an exception under 19 CFR 134.32(d) from marking the lock cylinder at the time of importation. In this regard, 19 CFR 134.34(a) provides that:
an exception under section 134.32(d) may be authorized in the discretion of the district director for imported articles which are to be repacked after release from Customs custody under the following conditions:

(1) the container in which the articles are repacked will indicate the origin of the articles to an ultimate purchaser in the U.S.

(2) The importer arranges for supervision of the marking of the contains by Customs officers at the importer's expense or secures such verification, as may be necessary, by certification and the submission of a sample or otherwise, of the marking prior to liquidation of the entry.

Whether or not the district director authorizes the above exception the retail box must satisfy the requirements of 19 CFR 134.46. Examination of the cardboard box in which the entire lock set is intended to be shipped contains the words "MARKS USA" on two sides and the mailing label. The lock body contains the words "MADE IN U.S.A." 134.46, Customs Regulations (19 CFR 134.46), requires that when the name of any city or locality in the U.S., or the name of any foreign country or locality other than the name of the country or locality in which the article was manufactured or produced, appear on a imported article or its container, there shall appear, legibly and permanently, in close proximity to such words, letters or name, and in at least a comparable size, the name of the country of origin preceded by "Made in," "Product of," or other words of similar meaning. Customs has ruled that in order to satisfy the close proximity requirement, the country of origin marking must appear on the same side(s) or surface(s) in which the name of the locality other than the country of origin appears. See HQ 708994 (April 24, 1978). The purpose of 19 CFR 134.46 is to prevent the possibility of misleading or deceiving the ultimate purchaser as to the origin of the imported article.

Similarly, 134.47, Customs Regulations (19 CFR 134.47), requires a slightly less restrictive marking. Under 134.47, when the name of a place other than the country of origin appears as part of a trademark or trade name or as part of a souvenir marking, the name of the actual country of origin must appear in close proximity to the place "or in some other conspicuous location". In other words, if the question concerns a trade name, trademark or souvenir, the country of origin marking needs only to meet the general standard of conspicuousness. In either 134.46 or 134.47, the name of the country of origin must be preceded by "Made in", "Product of", or words of similar meaning. See HQ 734175 (February 24, 1992); HQ 734277 (December 24, 1991).

In this case, a location other than the country of origin appears two different ways on the cardboard carton, the company name "MARKS USA", and the company address. In order to satisfy the requirements of 19 CFR 134.46, the words "Lock Cylinder Made in Taiwan", or similar words, must appear in close proximity to and in comparable size letters as the U.S. address on the carton. "MARKS USA" is a trade name. Therefore, the less restrictive requirements of 19 CFR 134.47 apply to such reference. The country of origin of the lock cylinder must be placed on the cardboard carton in a conspicuous location preceded by the words "Lock Cylinder Made in", or "Lock Cylinder a Product of", or words of similar meaning.

The lock body marking "MADE IN U.S.A." is not visible until the lock body is removed from the packaging. The shipping carton will inform the ultimate purchaser of the country of origin of the lock cylinder, therefore, the marking on the lock body will clearly refer only to the lock body and not the lock cylinder. Further, the lock cylinder is not attached but is contained in its own plastic bag.

We further find that the keys associated with the imported lock cylinder need not be marked with the country of origin. 19 CFR 134.32(m) allows articles exported and returned to the U.S. not to be marked with the country they are being shipped from. In this case the keys are exported to Taiwan where they are cut to match the lock cylinder and then returned to the U.S. Using the six factors above, we find that the keys are not substantially transformed by the simple cutting to match the lock cylinder. Therefore, the keys fall within the exception to marking of 19 CFR 134.32(m).

The sample packaging contains the words, "MARKS USA", and the lock body contains the marking "MADE IN U.S.A." This ruling does not address the issue of whether "USA" may be marked on the packaging, or lock. The determination of marking an item with the "USA" symbol is under the primary jurisdiction of the Federal Trade Commission and not this service. We, therefore, recommend that you contact the Federal Trade Commission, Division of Enforcement, located at 6th and Pennsylvania Avenue, N.W., Washington, D.C. 20580, for any views concerning marking the lock with the "USA" symbol.

HOLDING:

The imported lock cylinder is not substantially transformed in the U.S. by combining it with the U.S. manufactured remaining lock pieces as described supra. Therefore, MARKS USA is not the ultimate purchaser of the lock cylinder and the lock cylinder is subject to marking in accordance with the requirements of 19 CFR 134.14. Because the lock cylinders will be packaged in the U.S. prior to receipt by the ultimate purchaser the certification procedures set forth in 19 CFR 134.26 apply. Because of the reference to "MARKS USA" and a U.S. address on the new packages, the requirements of 19 CFR 134.46 and 19 CFR 134.47 apply. Alternatively, you may request from the district director an exception from marking the lock cylinders itself under the procedures set forth in 19 CFR 134.34. The key is excepted from marking under 19 CFR 134.32(m).

Sincerely,

John Durant, Director

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