[Federal Register Volume 73, Number 124 (Thursday, June 26, 2008)]
[Notices]
[Pages 36345-36347]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-14531]


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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