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NY 811788

July 12, 1995

MAR-2-64:S:N:N6:346 811788


Mr. Paul Leitner
Continental Agency
135 Brea Canyon Road
City of Industry, CA 91789


Dear Mr. Leitner:

This is in response to your letter dated June 9, 1995, on behalf of Pioneer Shoe Corp., requesting a ruling on the acceptability of a proposed country of origin marking for a "formed" suede leather shoe upper which is produced in China. A marked sample was submitted with your letter for review.

The instant import is a closed bottomed, fully lasted and shaped, high-top "work footwear" type upper, that has a five metal eyelet lace closure complete with an inserted tubular braided cord polyester shoelace. The fully "formed" leather upper is lasted under a paperboard insole and has an additional rigid plastic midsole plate with a 1/4 inch raised heel platform, externally cemented-on at the bottom, looking and functioning in all respects like an outer sole and heel on a finished shoe.

You state that an injection molded PVC sole will be applied to this "formed leather footwear upper", in the United States, to "transform the upper into a finished product of footwear". The importer, Pioneer, believes that this is a substantial enough change in relation to the imported article to allow the country of origin marking to be " Assembled in USA with imported components". Both the sample of the "formed" upper and a separate sample of the finished shoe, which was also submitted, have sewn-on plastic labels at the top inside portion of the tongue with this statement included at the very bottom of the labels as a stick-on addition. The label itself includes a size designation, a seven digit number, style name "Cougar" and the description "Genuine leather upper balance man made materials".

The marking statute, section 304, Tariff Act of 1930, as amended (19 U.S.C. 1304), provides that, unless excepted, every article of foreign origin (or its container) imported into the U.S. 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 U.S. the English name of the country of origin of the article.

Part 134, Customs Regulations (19 CFR Part 134), implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304. In general, if an imported article will be used in manufacture undergoes a process which results in a substantial transformation of the article, then the article itself is excepted from marking and only the outermost container of the imported article must be marked (19 CFR 134.35).

A substantial transformation occurs when articles lose their identity and become new articles having a new name, character or use. In the case of Uniroyal Inc. v. United States, the Court concluded that an imported lasted upper did not lose its distinct identity in the finished shoe by the addition of an outsole in the United States, and to the contrary was the very essence of the completed shoe. Following the conclusions of the Court in Uniroyal, it is our view that the attachment of a molded PVC sole to your "formed leather footwear upper" does not constitute a substantial transformation within the meaning of 19 CFR 134.35 .

Therefore, the sample of the "formed" shoe upper as described above, will have to be marked "Made in China" in a conspicuous place as legibly, indelibly and permanently as the nature of the article (or container) will permit (19 CFR 134.11). If imported as is, it will not meet the country of origin marking requirements of 19 USC 1304 and will be considered not legally marked.

As provided in section 134.41(b), Customs Regulations (19 CFR 134.41(b)), the country of origin marking is considered conspicuous if the ultimate purchaser in the U.S. is able to find the marking easily and read it without strain.

With regard to the permanency of a marking, section 134.41(a), Customs Regulations (19 CFR 134.41(a)), provides that as a general rule marking requirements are best met by marking worked into the article at the time of manufacture. For example, it is suggested that the country of origin on metal articles be die sunk, molded in, or etched. However, section 134.44, Customs Regulations (19 CFR 134.44), generally provides that any marking that is sufficiently permanent so that it will remain on the article until it reaches the ultimate purchaser unless deliberately removed is acceptable.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 CFR Part 177).

A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the Customs officer handling the transaction.


Jean F. Maguire
Area Director

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