[Federal Register Volume 77, Number 92 (Friday, May 11, 2012)]
[Notices]
[Pages 27788-27789]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-11345]



[[Page 27788]]

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DEPARTMENT OF HOMELAND SECURITY

U.S. Customs and Border Protection


Notice of Issuance of Final Determination Concerning Special Ops 
Flashlights and Sportsman Flashlights

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 a Special Ops Flashlight, Sportsman Flashlight, 
and a light-emitting diode (LED) blank assembly. Based upon the facts 
presented, CBP has concluded in the final determination that India is 
the country of origin of the blank LED Assembly, Special Ops 
Flashlight, and Sportsman Flashlight for purposes of U.S. Government 
procurement.

DATES: The final determination was issued on May 7, 2012. 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 June 11, 2012.

FOR FURTHER INFORMATION CONTACT: Robert Dinerstein, Valuation and 
Special Programs Branch, Regulations and Rulings, Office of 
International Trade (202-325-0132).

SUPPLEMENTARY INFORMATION: Notice is hereby given that on May 7, 2012, 
pursuant to subpart B of part 177, Customs and Border Protection (CBP) 
Regulations (19 CFR Part 177, Subpart B), CBP issued a final 
determination concerning the country of origin of the blank LED 
Assemblies, Special Ops Flashlights and Sportsman Flashlights which may 
be offered to the United States Government under an undesignated 
government procurement contract. This final determination, in HQ 
H185149, was issued at the request of Southwest Synergistic Solutions 
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 the 
Special Ops Flashlights and the Sportsman Flashlights which are 
assembled in the United States using the blank LED assemblies from 
India are products of India for purposes of U.S. Government 
procurement. The country of origin of the blank LED assembly is India.
    Section 177.29, CBP 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: May 7, 2012.
Sandra L. Bell,
Executive Director, Regulations and Rulings, Office of International 
Trade.

H185149

May 7, 2012

CLA-2 OT:RR:CTF:VS H185149 RSD

CATEGORY: Marking

Mr. Juan Enrique-Cienfuegos
Southwest Synergistic Solutions
215 N. Center,  703
San Antonio, Texas 78202

RE: Country of Origin of Special Ops Flashlights, Sportsman 
Flashlights, and Blank LEDs Assemblies

Dear Mr. Cienfuegos:

    This letter is in response to your letter of July 12, 2011, to 
our National Commodity Specialist Division, in which you requested a 
binding ruling pertaining to the classification under the Harmonized 
Tariff Schedule of the United States (HTSUS) and the country of 
origin for marking and government procurement of three items, the 
special ops flashlight, sportsman flashlight and light-emitting 
diodes (LEDs) blank assemblies. Your letter was forwarded from our 
National Commodity Specialist Division (NCSD) in New York to this 
office for a response to your request for a ruling on the country of 
origin for government procurement. By separate emails sent from 
January 6 through 21, 2012, you provided additional information for 
consideration as part of your ruling request. Samples of the 
articles were enclosed for our consideration. The classification and 
country of origin marking issues will be dealt with under separate 
cover.
    Under the pertinent regulations, which implement Title III of 
the Trade Agreements Act of 1979 (``TAA''), as amended (19 U.S.C. 
Sec.  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 U.S. 
law or practice for products offered for sale to the U.S. 
Government.
    This final determination concerns the country of origin of 
special ops flashlight, sportsman flashlight and LED blank 
assemblies. We note that Southwest Synergistic Solutions is a party-
at-interest within the meaning of 19 CFR Sec.  177.22(d)(1) and is 
entitled to request this final determination.

FACTS:

    The imported product under consideration is a LED blank 
assembly. The LED blank assembly is sold to for hobbyists who want 
to create their own unique lights. The assembly can be made into two 
types of flashlights, the Special Ops Flashlight and the Sportsman 
Flashlight. The LED blank assemblies are cylindrical in shape and 
measure approximately 1\3/8\ inches tall with an outside diameter of 
7/8 of an inch. The LED blank assemblies consist of multi-colored 
LEDs with Printed Circuit Boards (PCBs) attached to them. They 
incorporate four LEDs and a push-button switch that controls the 
LEDs. Both the LEDs and PCBs are made in India, where the two items 
are attached together. The power source used for the LED blank 
assemblies is a 3 volt lithium battery which is imported separately 
and sourced from China. The battery is attached to the LED blank in 
the United States. The remaining part that is attached to the LED 
blank assembly in the U.S. is the plastic battery tube. This is done 
by holding the PCB and outwardly folding the soldered battery straps 
to create a slight V shape; inserting the PCB into the battery tube; 
inserting the 3 V Lithium battery into the bottom side of the 
battery tube; sliding the battery back plate into place to close the 
circuit; and testing the LED blank.
    You claim the LED assembly is a blank, which can be utilized for 
several types of lights including flashlights, signal lights, 
ornamental lights, or novelty lights. The LED illumination is 
directional and the boards are currently imported with four 
different LED control software programs. The PCB can be reprogrammed 
in the United States depending on the demand at the time for a 
particular version. Furthermore, the sequences can be customized 
based on the customer's desired settings.

Special Op Flashlight and Sportsman Flashlight

    The LED assembly blanks may be used to produce two types of 
flashlights. The first product is a Special Ops Flashlight 
containing an infrared LED and 3 visible colored lights. The second 
flashlight contains visible colored lights and is called the 
Sportsman Flashlight. The various color wavelengths offer the user a 
variety of illumination options. The infrared LED is used by special 
forces or SWAT teams to illuminate maps or their walking path, and 
can only be seen with infrared night vision optics. The red light is 
used for low light illumination to preserve night vision equipment. 
The yellow light is used for low light illumination and animal 
watching. The green light is used for map reading. The blue light is 
used for fluid trail blood tracking. The Special Ops and Sportsman 
flashlight consists of the following components.
    1. LED blank assemblies,
    2. Silicon Flashlight top,
    3. Silicon Ross bottomed magnetic end cap,
    4. Magnets,
    5. Packaging tube and cap, and
    6. Instructions.

    The assembly for both flashlights is as follows:

[[Page 27789]]

    1. Select proper LED blank software version;
    2. Insert LED blank into Silicon Flashlight top;
    3. Place magnets inside Cross bottomed Magnetic end cap;
    4. Attach the Silicon Cross bottomed magnetic end cap to 
assembled Silicon Flashlight light top;
    5. Test for proper function;
    6. Place the instructions inside packaging tube; and
    7. Place the finished flashlight into the packaging tube and 
cover with top.
    You indicate that all the software for the flashlights is 
written in the United States. The PCB's used in the LED blank 
assemblies produced in India will always be programmed with one 
version of the U.S. software. Some will have only one function 
programmed at the time of import and if reprogramming is required, 
it will be reprogrammed in the United States using the programming 
pads found on the backside of the PCB. The boards are reprogrammed 
on a reprogramming dock for loading the new software. Other PCB's 
will be set to a default mode, but the user will have the ability to 
select more than 15 different function modes already found in the 
PCB program utilizing the switch found on the PCB to set the PCB 
into program mode. The program will be selected by the number of 
clicks the switch receives.
    You report that you are currently able to sell a version of the 
LED blank assemblies with multiple functions which could be used as 
a flashlight, a novelty device, a signaling device, or a tactical 
light. The end user determines how they want to use the LED blank 
assembly. Buyers of this version will be made aware of their ability 
to switch between different program modes and how to do it. However, 
for the Sportsman Flashlight or the Special Ops Flashlight, the LED 
blank assemblies program selection will be entered prior to 
shipping, and there is no ability to change modes. The software may 
be upgraded, but the LED blank assemblies need to be returned to the 
company for reprogramming. Once the LED blank assembly is returned, 
it no longer has to be disassembled to reach the reprogramming pads. 
The switch may be manipulated to give the customer their desired 
change.

ISSUE:

    What is the country of origin of the flashlights and the LED 
assemblies for government procurement purposes?

LAW AND ANALYSIS:

    Pursuant to subpart B of Part 177, 19 C.F.R Sec.  177.21 et 
seq., which implements Title III of the Trade Agreements Act of 
1979, as amended (19 U.S.C. Sec.  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 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. Sec.  
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 C.F.R Sec.  177.22(a) defining ``country of origin'' in 
identical terms

    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 C.F.R. Sec.  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 
C.F.R. Sec.  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. See 48 C.F.R. 
Sec.  25.003. Therefore, the question presented in this final 
determination is whether, as a result of the operations performed in 
the United States, the imported flashlight devices are substantially 
transformed into products of the United States.
    A substantial transformation is said to have occurred when an 
article emerges from a manufacturing process with a name, character, 
or use that differs from the original material subjected to the 
process. M.B.I. Merchandise Industries, Inc. v. United States, 16 
C.I.T. 495, 502 (1992) (citing United States v. Gibson-Thomsen Co., 
C.C.P.A. 267, 270 (C.A.D. 98) (1940)) The question of whether a 
substantial transformation occurs for marking purposes is a question 
of fact; to be determined on a case-by-case basis. National Hand 
Tool Corp. v. United States, 16 C.I.T. 308, 311 (1992) (quoting 
Uniroyal Inc. United States, 3 C.I.T. 220, 542 F. Supp. 1026 (1982), 
aff'd, 1 Fed.Cir. 21, 702 F.2d 1022 (1983)).
    Assembly operations which are minimal or simple, as opposed to 
complex or meaningful will generally not result in a substantial 
transformation. In determining whether the United States processing 
constitutes a substantial transformation, the 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 (CIT 1983), aff'd, 741 F.2d 1368 
(Fed. Cir. 1984). See also C.S.D. 85-25. If the manufacturing or 
combining process is merely a minor one which leaves the identity of 
the imported article intact, a substantial transformation has not 
occurred. See Uniroyal.
    CBP considers the totality of the circumstances in determining 
whether an imported article loses it identity when it is combined 
with other articles in the United States. 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. 
CBP takes into account such factors as resources expended on product 
design and development, the extent and nature of post-assembly 
inspection and testing procedures, and degree of worker skill 
required during the actual manufacturing process. See HQ H107335 
dated September 9, 2010; and HQ H006417 dated August 20, 2008. No 
single factor is determinative.
    We conclude that the LED blank assemblies provide the essential 
character to the finished Special Ops and Sportsman flashlights. The 
LED blank assemblies are clearly the dominant component contained in 
the flashlights. When they are imported into the United States, the 
LEDs blank assemblies which are produced in India, incorporate the 
four light emitting diodes and a push-button switch that control the 
LEDs. Thus, they are capable of generating the four different light 
colors that are the defining characteristic of the flashlights. As 
such, they possess all the basic functions of the two finished 
flashlights. In our judgment, the assembly of the other components 
with LED blank assemblies to make the finished flashlights 
constitutes a simple assembly operation that involves a small number 
of components which does not appear to require a considerable amount 
of time, a high degree of skill or attention to detail. Although the 
LEDs require programming to allow them to function as flashlights 
rather than in some other capacity such as signaling, decorative or 
novelty devices, the programming operation is not sufficiently 
complex to change the identity or nature of the devices. After the 
software is loaded onto the LED blank assemblies, the devices still 
function to emit light. Therefore, we conclude that the LED blank 
assemblies imported from India are not substantially transformed as 
a result of the processing operations performed in the United States 
to make the two versions of the finished flashlights. Consequently, 
the country of the origin of the finished Special Ops and the 
Sportsman Flashlights for government procurement purposes is the 
same as the country of origin of the imported LED blank assemblies, 
namely India.

HOLDING:

    The country of origin of the Special Ops Flashlight, Sportsman 
Flashlight and Light-Emitting Diodes (LED) blank assemblies for 
government procurement purposes is India.
    Sincerely,

Sandra L. Bell, Executive Director Regulations and Rulings Office of 
International Trade

[FR Doc. 2012-11345 Filed 5-10-12; 8:45 am]
BILLING CODE 9111-14-P