[Federal Register: June 26, 2008 (Volume 73, Number 124)]
[Notices]
[Page 36345-36347]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26jn08-82]
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DEPARTMENT OF HOMELAND SECURITY
U.S. Customs and Border Protection
Notice of Issuance of Final Determination Concerning Fiber Optic
Cable With End Connectors
AGENCY: U.S. Customs and Border Protection, Department of Homeland
Security.
ACTION: Notice of final determination.
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SUMMARY: This document provides notice that U.S. Customs and Border
Protection (CBP) has issued a final determination concerning the
country of origin of certain fiber optic cable with end connectors
which may be offered to the United States Government under an
undesignated government procurement contract. Based upon the facts
presented, in the final determination CBP concluded that the United
States is the country of origin of the fiber optic cable with end
connectors for purposes of U.S. Government procurement.
DATES: The final determination was issued on June 20, 2008. A copy of
the final determination is attached. Any party-at-interest, as defined
in 19 CFR 177.22(d), may seek judicial review of this final
determination within July 28, 2008.
FOR FURTHER INFORMATION CONTACT: Gerry O'Brien, Valuation and Special
Programs Branch, Regulations and Rulings, Office of International Trade
(202-572-8792).
SUPPLEMENTARY INFORMATION: Notice is hereby given that on June 20,
2008, pursuant to subpart B of part 177, Customs Regulations (19 CFR
part 177, subpart B), CBP issued a final determination concerning the
country of origin of fiber optic cable with end connectors which may be
offered to the United States Government under an undesignated
government procurement contract. This final determination, in HQ
H025747, was issued at the request of Score Fiber Optics under
procedures set forth at 19 CFR part 177, subpart B, which implements
Title III of the Trade Agreements Act of 1979, as amended (19 U.S.C.
2511-18). In the final determination, CBP concluded that, based upon
the facts presented, certain fiber optic cable exported from the United
States, processed in China into fiber optic cable with end connectors
is not substantially transformed in China, such that the United States
is the country of origin of the finished article for purposes of U.S.
Government procurement.
Section 177.29, Customs Regulations (19 CFR 177.29), provides that
notice of final determinations shall be published in the Federal
Register within 60 days of the date the final determination is issued.
Section 177.30, CBP Regulations (19 CFR 177.30), provides that any
party-at-interest, as defined in 19 CFR 177.22(d), may seek judicial
review of a final determination within 30 days of publication of such
determination in the Federal Register.
Dated: June 20, 2008.
Sandra L. Bell,
Executive Director, Office of Regulations and Rulings, Office of
International Trade.
HQ H025747
June 20, 2008
MAR-2-05 OT:RR:CTF:VS H025747 GOB
Category: Marking.
Craig J. Catalano, Vice President of Global Development, Score Fiber
Optics, 380 Townline Road, Hauppauge, NY 11788
Re: U.S. Government Procurement; Title III, Trade Agreements Act of
1979 (19 U.S.C. 2511); Subpart B, Part 177, CBP Regulations; Fiber
Optic Cable
Dear Mr. Catalano: This is in response to your letter of December
13, 2007, requesting a final determination on behalf of Score Fiber
Optics (``Score''), pursuant to subpart B of Part 177, Customs and
Border Protection (``CBP'') Regulations (19 CFR 177.21 et seq.). Your
letter of December 13, 2007, as well as your later correspondence of
January 24, 2008 and February 27, 2008, were forwarded to this office
by the National Commodity Specialists Division by memorandum of March
25, 2008. Under the pertinent regulations, which implement Title III of
the Trade Agreements Act of 1979, as amended (19 U.S.C. 2511 et seq.),
CBP issues country of origin advisory rulings and final determinations
as to whether an article is or would be a product of a designated
country or instrumentality for the purpose of granting waivers of
certain ``Buy American'' restrictions in
[[Page 36346]]
U.S. law or practice for products offered for sale to the U.S.
Government.
This final determination concerns the country of origin of certain
fiber optic cable with end connectors. We note that Score is a party-
at-interest within the meaning of 19 CFR 177.22(d)(1) and is entitled
to request this final determination.
Facts
You describe the pertinent facts as follows. Both Score and its
parent company, Epcom,\1\ purchase fiber optic cable from an unrelated
company in the United States, Corning, Inc. (``Corning''). Corning
states that the fiber optic cable is produced in the United States and
has provided a Certificate of Origin indicating that 50 cartons of the
fiber optic cable are a product of the United States. The fiber optic
cable is a standard fiber optic cable and may consist of one or more
fiber optic fibers for strength. A thermoplastic coating provides
protection for the very thin fibers. Score exports the spools of
finished fiber optic cable to China where the fiber optic cable is cut
to length and metal connectors made in China are applied to the fiber
optic cable. Specifically, the spooled fiber optic cable is cut to
length. Each end of the cut cable is threaded through a metal holder
where about two inches of sheathing are removed from each end of the
cable. Any exposed fiber is cut off and the plastic jacketing of the
optical fiber is removed. The exposed fiber is cleaned with alcohol and
measured. It is then threaded through a connector, glued to the
connector, and excess fiber is trimmed. The connectors are placed into
a finishing machine, where the fiber ends are automatically beveled and
polished. Metal springs are inserted into a connector and welded into
place. The connectors are cleaned and tested.
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\1\ Your submission indicates that Score and Epcom act together
in the activities described in this ruling.
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Score purchases or manufactures a metal ferrule in China. The
ferrule, which is a hollow cylinder, is used to align the ends of the
optical fibers as the fibers are inserted into the connectors. The
hollow center of the ferrule contains one channel that is designed to
fit the optical fiber and to align the fiber ends, enabling light to
pass through the connection. Score purchases or manufactures metal
parts to be used in the cable connectors. These parts are made in
China.
You furnished a sample (item no. SS-11SCU-SCU-001) which is a
single optic fiber, approximately 42 inches long, with thermoplastic
coating and connectors at each end. You state that Score will be
exporting and reimporting many similar products. The finished article
is used to connect equipment to telecommunication networks.
In addition to country of origin for government procurement, you
ask if you may mark the fiber optic cable ``Made in the United
States.''
Issue
What is the country of origin of the subject fiber optic cable with
end connectors for the purpose of U.S. Government procurement?
Law and Analysis
Pursuant to Subpart B of Part 177, 19 CFR 177.21 et seq., which
implements Title III of the Trade Agreements Act of 1979, as amended
(19 U.S.C. 2511 et seq.), CBP issues country of origin advisory rulings
and final determinations as to whether an article is or would be a
product of a designated country or instrumentality for the purposes of
granting waivers of certain ``Buy American'' restrictions in U.S. law
or practice for products offered for sale to the U.S. Government.
Under the rule of origin set forth under 19 U.S.C. 2518(4)(B):
An article is a product of a country or instrumentality only if
(i) it is wholly the growth, product, or manufacture of that country
or instrumentality, or (ii) in the case of an article which consists
in whole or in part of materials from another country or
instrumentality, it has been substantially transformed into a new
and different article of commerce with a name, character, or use
distinct from that of the article or articles from which it was so
transformed.
See also, 19 CFR 177.22(a).
In rendering advisory rulings and final determinations for purposes
of U.S. Government procurement, CBP applies the provisions of subpart B
of Part 177 consistent with the Federal Procurement Regulations. See 19
CFR 177.21. In this regard, CBP recognizes that the Federal Procurement
Regulations restrict the U.S. Government's purchase of products to
U.S.-made or designated country end products for acquisitions subject
to the TAA. See 48 CFR 25.403(c)(1). The Federal Procurement
Regulations define ``U.S.-made end product'' as:
* * * an article that is mined, produced, or manufactured in the
United States or that is substantially transformed in the United
States into a new and different article of commerce with a name,
character, or use distinct from that of the article or articles from
which it was transformed.
48 CFR 25.003.
In determining whether the combining of parts or materials
constitutes a substantial transformation, the determinative issue is
the extent of operations performed and whether the parts lose their
identity and become an integral part of the new article. Belcrest
Linens v. United States, 573 F. Supp. 1149 (Ct. Int'l Trade 1983),
aff'd, 741 F.2d 1368 (Fed. Cir. 1984). Assembly operations that are
minimal or simple, as opposed to complex or meaningful, will generally
not result in a substantial transformation. See, C.S.D. 80-111, C.S.D.
85-25, C.S.D. 89-110, C.S.D. 89-118, C.S.D. 90-51, and C.S.D. 90-97. If
the manufacturing or combining process is a minor one which leaves the
identity of the article intact, a substantial transformation has not
occurred. Uniroyal, Inc. v. United States, 3 CIT 220, 542 F. Supp. 1026
(1982), aff'd 702 F.2d 1022 (Fed. Cir. 1983). In Uniroyal, the court
determined that a substantial transformation did not occur when an
imported upper, the essence of the finished article, was combined with
a domestically produced outsole to form a shoe.
In order to determine whether a substantial transformation occurs
when components of various origins are assembled into completed
products, CBP considers the totality of the circumstances and makes
such determinations on a case-by-case basis. The country of origin of
the item's components, extent of the processing that occurs within a
country, and whether such processing renders a product with a new name,
character, and use are primary considerations in such cases.
Additionally, factors such as the resources expended on product design
and development, extent and nature of post-assembly inspection and
testing procedures, and the degree of skill required during the actual
manufacturing process may be relevant when determining whether a
substantial transformation has occurred. No one factor is
determinative.
In HQ 561392 dated June 21, 1999, CBP considered the country of
origin marking requirements of an insulated electric conductor which
involved an electrical cable with pin connectors at each end used to
connect computers to printers or other peripheral devices. The cable
and connectors were made in Taiwan. In China, the cable was cut to
length and connectors were attached to the cable. CBP held that cutting
the cable to length and assembling the cable to the connectors in China
did not result in a substantial transformation. In HQ 560214 dated
September 3, 1997, CBP held that where wire rope cable was cut to
length, sliding hooks were put on the rope, and end ferrules were
swaged on in the U.S., the wire rope cable was not
[[Page 36347]]
substantially transformed. CBP concluded that the wire rope maintained
its character and did not lose its identity and did not become an
integral part of a new article when attached with the hardware. In HQ
555774 dated December 10, 1990, CBP held that Japanese wire cut to
length and electrical connectors crimped onto the ends of the wire was
not a substantial transformation. In HQ 562754 dated August 11, 2003,
CBP found that cutting of cable to length and assembling the cable to
the Chinese-origin connectors in China did not result in a substantial
transformation of the cable.
Based upon the facts presented and the pertinent authorities, we
determine that U.S.-origin fiber optic cable exported to China and
processed in China as described above, is not substantially transformed
in China into a new and different article of commerce with a name,
character, and use distinct from the article exported. Therefore, the
fiber optic cable with end connectors is considered a product of the
United States for the purpose of government procurement.
Further, the fiber optic cable with end connectors is not required
to be marked ``Made in China.'' For a determination as to whether you
may mark the finished product ``Made in the U.S.,'' please contact the
Federal Trade Commission.
Holding
The fiber optic cable of U.S. origin, which is exported to China
and processed in China as described above, is not substantially
transformed in China into a new and different article of commerce with
a name, character, and use distinct from the article exported.
Therefore, the fiber optic cable is considered a product of the United
States for the purpose of government procurement.
Notice of this final determination will be given in the Federal
Register, as required by 19 CFR 177.29. Any party-at-interest other
than the party which requested this final determination may request,
pursuant to 19 CFR 177.31, that CBP reexamine the matter anew and issue
a new final determination. Pursuant to 19 CFR 177.30, any party-at-
interest may, within 30 days after publication of the Federal Register
notice referenced above, seek judicial review of this final
determination before the Court of International Trade.
Sincerely,
Sandra L. Bell,
Executive Director, Office of Regulations and Rulings, Office of
International Trade.
[FR Doc. E8-14531 Filed 6-25-08; 8:45 am]
BILLING CODE 9111-14-P