The country of origin of fiber optic cable assemblies

N312111 June 10, 2020 CLA-2-90:OT:RR:NC:N2:212 CATEGORY: Country of Origin Paula Connelly Sandler, Travis & Rosenberg, P.A. 100 Trade Center, Suite G-100 Woburn, MA 01801 RE: The country of origin of fiber optic cable assemblies Dear Ms. Connelly: In your letter dated May 28, 2020, you requested a country of origin ruling on behalf of your client, Senko Advanced Components, Inc. There are two items at issue with this request that are identified as the following: 6F SM 2.0mm Premium Colored Tube Fanout Black Riser Pigtail SM 0.9mm SCAPC with Colored Tube Fanout 24F Black Riser Pigtail The subject items are described as fiber optic cable assemblies used for various telecommunications and data communication applications. You state that the manufacturing processes for the assemblies are virtually identical and illustrated in the following paragraphs. The process begins when jacketed optical fibers originating from the U.S. are sent to China where items of Chinese and Taiwanese origin are added to complete the assembly. In China, the jacketed fiber is cut to the desired length prior to the individual fibers being exposed and fanned out in preparation for the addition of connectors. The ferrules are then adhered to the end of the fibers with epoxy, which is heated in an oven to cure. The ferrules are polished and the remainder of the connector parts are added. The finished cable is then inspected and tested for form and function. The “country of origin” is defined in 19 CFR 134.1(b), in pertinent part, as “the country of manufacture, production, or growth of any article of foreign origin entering the United States. Further work or material added to an article in another country must effect a substantial transformation in order to render such other country the 'country of origin' within the meaning of this part.” For tariff purposes, the courts have held that a substantial transformation occurs when an article emerges from a process with a new name, character or use different from that possessed by the article prior to processing. United States v. Gibson-Thomsen Co., Inc., 27 CCPA 267, C.A.D. 98 (1940); National Hand Tool Corp. v. United States, 16 CIT 308 (1992), aff’d, 989 F. 2d 1201 (Fed. Cir. 1993); Anheuser Busch Brewing Association v. The United States, 207 U.S. 556 (1908) and Uniroyal Inc. v. United States, 542 F. Supp. 1026 (1982). Further, in Energizer Battery, Inc. v. United States, 190 F. Supp. 3d 1308 (2016), the Court of International Trade (“CIT”) interpreted the meaning of “substantial transformation” as used in the Trade Agreements Act of 1979 (“TAA”) for purposes of government procurement. In Energizer, the court reviewed the “name, character and use” test in determining whether a substantial transformation had occurred in determining the origin of a flashlight, and reviewed various court decisions involving substantial transformation determinations. The court noted, citing Uniroyal, Inc. v. United States, 3 C.I.T. 220, 226, 542 F. Supp. 1026, 1031, aff’d, 702 F.2d 1022 (Fed. Cir. 1983), that when “the post-importation processing consists of assembly, courts have been reluctant to find a change in character, particularly when the imported articles do not undergo a physical change.” Energizer at 1318. In addition, the court noted, “when the end-use was pre-determined at the time of importation, courts have generally not found a change in use.” Energizer at 1319, citing as an example, National Hand Tool Corp. v. United States, 16 C.I.T. 308, 310, aff’d 989 F.2d 1201 (Fed. Cir. 1993). Furthermore, courts have considered the nature of the assembly, i.e., whether it is a simple assembly or more complex, such that individual parts lose their separate identities and become integral parts of a new article. With regard to the origin of the subject fiber optic cable assembly, it is the opinion of this office that the U.S. origin jacketed optical fibers impart the essential functional component of the finished good. While the processing and assembly completed in China is integral to the function of the assembly in its finished state, we find that the addition of the connectors does not substantially transform the U.S. parts into a new and different article of commerce with a name, character, and use distinct from the article exported. Based upon the facts presented, it is the opinion of this office that the origin of the following optical cable assemblies is the United States: 6F SM 2.0mm Premium Colored Tube Fanout Black Riser Pigtail SM 0.9mm SCAPC with Colored Tube Fanout 24F Black Riser Pigtail Whether an article may be marked with the phrase "Made in the USA" or similar words denoting U.S. origin, is an issue under the authority of the Federal Trade Commission (FTC). We suggest that you contact the FTC Division of Enforcement, 6th and Pennsylvania Avenue, N.W., Washington, D.C. 20508 on the propriety of proposed markings indicating that an article is made in the USA. This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177). A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Luke LePage at [email protected]. Sincerely, Steven A. Mack Director National Commodity Specialist Division