CLA-2-90:OT:RR:NC:N2:212
Paula Connelly
Sandler, Travis & Rosenberg, P.A.
100 Trade Center, Suite G-100
Woburn, MA 01801
RE: The country of origin of fiber optic splitter assemblies
Dear Ms. Connelly:
In your letter dated February 8, 2021, 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 follows:
1 x 8 PLC LCAPC Input, Non Connector Output, 250um Bi PM Fiber
1 x 32 Planar Splitter LCAPC Input-Output Assembly
The subject items are described as Planar Lightwave Circuit (PLC) splitter assemblies for use in various telecommunications and data communication applications. Both units consist of a fiber optic cable, terminated at one end with an optical connector. The other end of the cable is passed through a splitter module and separated into individual optical fibers. In the case of the first item, the individual fibers at the split end are not terminated while in the second, the ends are terminated with individual optical connectors.
You state that in both cases optical fibers of Japanese origin are imported into China for further processing and combination with components originating from multiple countries, including China, Korea, and Taiwan. The manufacturing process for both items is virtually identical, with the only difference being the addition of connectors in the second item. In China, Japanese optical fibers are attached to specialized glass components to create input and output arrays. A splitter module is then assembled around the arrayed fibers, splitting the fibers for multiple individual cables. This concludes the process for those imported without termination connections.
For those assemblies that are imported with terminations, you state that connector parts of various origins are added to the ends of each optical fiber. The process includes exposing the bare fiber and adhering the ferule module onto the end prior to adding the connector housings.
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 country of origin of the subject splitter assemblies, it is the opinion of this office that the Japanese origin optical fibers are the essential functional component of the finished article. While the processing and assembly completed in China is integral to the function of the assembly in its finished state, we find that this process does not substantially transform the Japanese 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 PLC splitter assemblies 1 x 8 PLC LCAPC Input, Non Connector Output, 250um Bi PM Fiber and1 x 32 Planar Splitter LCAPC Input-Output Assembly, is Japan.
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