[Federal Register Volume 86, Number 40 (Wednesday, March 3, 2021)]
[Notices]
[Pages 12487-12489]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-04334]
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DEPARTMENT OF HOMELAND SECURITY
U.S. Customs and Border Protection
Notice of Issuance of Final Determination Concerning a
Transceiver
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 transceiver, identified as the Barrett 4050 HF
SDR Transceiver. Based upon the facts presented, CBP has concluded in
the final determination that the transceiver, which is assembled in the
United States of various imported components, including three
Australian-origin printed circuit board assemblies, is not a product of
a foreign country or instrumentality designated for purposes of U.S.
Government procurement.
DATES: The final determination was issued on February 25, 2021. 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 April 2, 2021.
FOR FURTHER INFORMATION CONTACT: Cynthia Reese, Valuation and Special
Programs Branch, Regulations and Rulings, Office of Trade (202-325-
0046).
SUPPLEMENTARY INFORMATION: Notice is hereby given that on February 25,
2021, CBP issued a final determination concerning the country of origin
of the Barrett 4050 HF SDR Transceiver for purposes of Title III of the
Trade Agreements Act of 1979. This final determination, HQ H314982, was
issued at the request of Barrett Communications USA Corporation, 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 has concluded that, based
upon the facts presented, as a result of the assembly of various
imported components, including three Australian-origin
[[Page 12488]]
printed circuit board assemblies, in the United States, the finished
transceiver is not a product of a foreign country or instrumentality
designated pursuant to 19 U.S.C. 2511(b) for purposes of U.S.
Government procurement.
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: February 25, 2021.
Joanne R. Stump,
Acting Executive Director, Regulations and Rulings, Office of Trade.
HQ H314982
February 25, 2021
OT:RR:CTF:VS H314982 CMR
CATEGORY: Origin
Jon P. Yormick, Esq. Flannery Georgalis LLC 1375 East Ninth Street
One Cleveland Center, Floor 30 Cleveland, Ohio 44114
RE: U.S. Government Procurement; Title III, Trade Agreements Act of
1979 (19 U.S.C. 2511); subpart B, Part 177, CBP Regulations; Country
of Origin of a Transceiver
Dear Mr. Yormick:
This is in response to your request of October 22, 2020, on
behalf of your client, Barrett Communications USA Corporation, for a
final determination concerning the country of origin of a device
referred to as a Barrett 4050 HF SDR Transceiver pursuant to Title
III of the Trade Agreements Act of 1979 (TAA), as amended (19 U.S.C.
2511 et seq.). As the importer of merchandise entered into the
United States and further processed in the United States, your
client may request a final determination pursuant to 19 CFR
177.23(a).
Facts
The item at issue, the Barrett 4050 HF SDR Transceiver
(hereinafter, ``transceiver''), is a software-defined based, single-
sideband (``SSB'') transceiver with a frequency range of 1.6 to 30
MHz (transmit) and 250 kHz to 30 MHz (receive). You describe the
transceiver as ``a commercial product that supports features such as
Selective Call (Selcall), direct dial telephone connection to base
stations fitted with telephone interconnect systems (Telcall), GPS
location, 2G and 3G ALE (Automatic Link Establishment), frequency
hopping, digital voice, data transmission and remote diagnostics.''
You indicate that the transceiver provides ``a comprehensive data
modem interface port, high speed transmit-to-receive switching, a
high stability frequency standard and an efficient cooling system
option.''
You indicate that the transceiver's control head ``features a
GUI [graphical user interface] on a high definition 24-bit LCD color
touchscreen.'' You state that ``[t]he [c]ontrol [h]ead can be
detached from the main body of the [t]ransceiver for remote control.
The [t]ransceiver can also be controlled remotely from most mobile
and desktop platforms, including iOS, Android, and Windows
devices.''
You specify that there are three main assemblies for each
transceiver--(1) the control head assembly; (2) the power amplifier
(PA) assembly and chassis; and, (3) the microprocessor board and
interface board assembly and chassis. Within these three main
assemblies are five printed circuit board assemblies (PCBAs). The
five PCBAs and the countries in which each PCBA is produced are as
follows: the control head board (United States); the interface board
(United States); the micro board (Australia); the PA board
(Australia); and the volume control board (Australia). You indicate
that prior to export to the United States, the only software
installed on the boards produced in Australia is for the limited
purpose of testing and diagnostics. The Australian produced boards
are non-functional at the time of importation into the United
States.
In addition to the PCBAs described above, ``each transceiver
includes, a radio chassis, a speaker, an LCD screen, looms, various
molded plastic parts including dials and buttons, and various seals
and fasteners.''
The transceiver is assembled in the United States from imported
and domestically produced components. You state the transceiver is
assembled as a ``clamshell.'' You state:
The Micro and Interface Boards are mounted on one half of the
``clamshell;'' the PA Board is on the other half of the
``clamshell.'' When the ``clamshell'' is assembled there are cables
between the two (2) halves to allow signaling and RF to pass between
them. An HD15 pin connector interface on one half of the
``clamshell'' provides signaling to the Control Head. The Control
Head has a color, touch screen display, volume knob, and buttons.
The Control Head Board is mounted to the chassis of the Control
Head, using screws and a loom. The loom takes the signaling from the
screen and buttons to the Control Head Board, while another loom
takes the signaling from the Control Head Board out to the
interfacing HD connector. The Volume Control Board fits directly to
the Control Head Board, as a daughter board.
With regard to the functions of the boards, you state that the
transceiver cannot function without the control head board. In
addition, the interface board ``allows the [t]ransceiver to connect
to antennae and auxiliaries such as modems and audio devices.''
Further, you indicate that the interface board enables the micro
board to function. You state that the interface board allows the
micro board ``to interface with all external items.''
With regard to the control head, an integrated circuit (IC) and
firmware programming process must be performed prior to assembly.
After the IC is provided with its base programming, the control head
is partially assembled and the control head board is loaded with
base firmware programming. Once the programming is completed, the
assembly of the control head (which entails cleaning and inspecting
parts, installing the LCD screen and control head board, and
assembling the remaining twenty-two control head components) is
completed and the control head board is modified to function as part
of the main assembly.
After the transceiver is fully assembled, base operating
firmware and software, which will control and enable functionality,
is installed on the interface board and micro board. This software
is developed by a combination of efforts. Source code is written for
the transceiver by software developers in Australia. Technicians in
the United States convert the source code into executable object
code, load it onto the interface board and micro board and test the
downloaded object code. Software for optional features, which is
obtained from a foreign third-party, may also be installed if
required according to a customer's purchase order specifications.
Personnel in the U.S. ``install the software and firmware, which
takes approximately forty-five (45) minutes, including programming
the 2G ALE modem and the [t]ransceiver.''
After the transceivers are assembled and programmed, they are
tested. The software and the transceiver operation are tested. The
testing occurs at the U.S. facility where the transceivers are
assembled and programmed. Testing may also occur at customer sites
within and outside the United States. After assembling, programming
and testing, the transceivers are packed and shipped to customers
located in the United States and throughout the Americas.
Issue
Whether the transceivers at issue, which are assembled and
programmed in the United States of domestic and foreign inputs, are
eligible under Title III of the TAA, as amended (19 U.S.C. 2511-
2518), as products of a foreign country or instrumentality
designated pursuant to section 2511(b).
Law and Analysis
U.S. Customs and Border Protection (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, pursuant to subpart B of Part 177,
19 CFR 177.21 et seq., which implements Title III, Trade Agreements
Act of 1979, as amended (19 U.S.C. 2511-2518).
The rule of origin set forth in 19 U.S.C. 2518(4)(B) states:
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.
[[Page 12489]]
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
Acquisition 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 Acquisition 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.
The regulations define a ``designated country end product'' as:
WTO GPA [World Trade Organization Government Procurement
Agreement] country end product, an FTA [Free Trade Agreement]
country end product, a least developed country end product, or a
Caribbean Basin country end product.
A ``Free Trade Agreement country end product'' means an article
that--
(1) Is wholly the growth, product, or manufacture of a Free
Trade Agreement (FTA) country; or
(2) In the case of an article that consists in whole or in part
of materials from another country, has been substantially
transformed in an FTA country 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. The term refers
to a product offered for purchase under a supply contract, but for
purposes of calculating the value of the end product, includes
services (except transportation services) incidental to the article,
provided that the value of those incidental services does not exceed
that of the article itself.
``Free Trade Agreement country'' means Australia, Bahrain, Canada,
Chile, Colombia, Costa Rica, Dominican Republic, El Salvador,
Guatemala, Honduras, Korea (Republic of), Mexico, Morocco,
Nicaragua, Oman, Panama, Peru, or Singapore. See 48 CFR 25.003.
Thus, Australia is an FTA country for purposes of the Federal
Acquisition Regulations.
CBP's authority to issue advisory rulings and final
determinations is set forth in 19 U.S.C. 2515(b)(1), which states:
For the purposes of this subchapter, the Secretary of the
Treasury shall provide for the prompt issuance of advisory rulings
and final determinations on whether, under section 2518(4)(B) of
this title, an article is or would be a product of a foreign country
or instrumentality designated pursuant to section 2511(b) of this
title.
Emphasis added.
In this case, the transceiver contains five separate PCBAs. We
are told that three of these are produced by the assembly of the
various components onto the PCB in Australia, and two are similarly
produced in the United States. CBP has consistently held that the
assembly of various components onto a blank printed circuit board to
produce a PCBA is a substantial transformation. See Headquarters
Ruling Letter (HQ) H311447, dated September 10, 2020, citing HQ
735306, dated December 21, 1993 (``. . . Customs has ruled that the
complete assembly of all the components onto a printed circuit board
was a substantial transformation of the printed circuit board . . .
''), and HQ H302801, dated October 3, 2019 (``The SMT [surface-mount
technology] operations result in a new and different product with an
overall use and function different than any one function of the
individual components.''). In this case, the three Australian-
produced PCBAs and numerous other components from various countries
are imported into the United States for assembly into the finished
transceiver. The PCBAs for the control head board and the interface
board, PCBAs which CBP considers to be dominant as they are within
components which are essential to the functioning of the
transceiver, are assembled in the United States. You state that the
transceiver cannot function without the control head board. Further,
the interface board allows the transceiver to connect to antennae
and items such as, modems and audio devices. The interface board
enables the micro board to function and interface with external
items.
We note the production includes the assembly in the United
States of the dominant PBCAs related to the transceiver's function,
along with the assembly of all the remaining components of the
transceiver to produce the finished good. While CBP does not
recognize downloading of firmware or software to constitute a
substantial transformation, we note that the conversion of the
Australian software into executable code, which occurs in the United
States, and programming of the transceiver boards is additional work
to be considered in assessing the proper origin of the finished
transceiver. See HQ H306349, dated November 26, 2019, (``. . . CBP
has consistently held that the downloading of software or firmware
is not a substantial transformation.'').
Noting that CBP is limited by the language of 19 U.S.C.
2515(b)(1) to a determination of whether a good is a product of a
foreign country or instrumentality designated pursuant to section
2511(b) of this title, based upon the information presented, the
transceiver is not a product of Australia or any other foreign
country or instrumentality designated pursuant to section 2511(b) of
Title 19. As to whether the transceiver which is assembled in the
United States qualifies as a ``U.S.-made end product,'' we encourage
you to review the recent court decision in Acetris Health, LLC v.
United States, 949 F.3d 719 (Fed. Cir. 2020), and to consult with
the relevant government procuring agency.
Holding
The transceiver at issue, the Barrett 4050 HF SDR Transceiver,
is not a product of Australia or any other foreign country or
instrumentality designated pursuant to section 2511(b) of Title 19.
You should consult with the relevant government procuring agency
to determine whether the transceiver qualifies as a ``U.S.-made end
product'' for purposes of the Federal Acquisition Regulations
implementing the TAA.
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 of publication of the Federal
Register Notice referenced above, seek judicial review of this final
determination before the Court of International Trade.
Sincerely,
Joanne R. Stump
Acting Executive Director Regulations and Rulings Office of Trade
[FR Doc. 2021-04334 Filed 3-2-21; 8:45 am]
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