Notice of Issuance of Final Determination Concerning Certain Insufflation Tubing, 34603-34605 [2018-15536]
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Federal Register / Vol. 83, No. 140 / Friday, July 20, 2018 / Notices
daltland on DSKBBV9HB2PROD with NOTICES
information technology, e.g., permitting
electronic submission of responses. The
comments that are submitted will be
summarized and included in the request
for approval. All comments will become
a matter of public record.
Overview of This Information
Collection
Title: Customs Declaration.
OMB Number: 1651–0009.
Form Number: CBP Form 6059B.
Abstract: CBP Form 6059B, Customs
Declaration, is used as a standard report
of the identity and residence of each
person arriving in the United States.
This form is also used to declare
imported articles to U.S. Customs and
Border Protection (CBP) in accordance
with 19 CFR 122.27, 148.12, 148.13,
148.110, 148.111; 31 U.S.C. 5316 and
section 498 of the Tariff Act of 1930, as
amended (19 U.S.C. 1498).
Section 148.13 of the CBP regulations
prescribes the use of the CBP Form
6059B when a written declaration is
required of a traveler entering the
United States. Generally, written
declarations are required from travelers
arriving by air or sea. Section 148.12
requires verbal declarations from
travelers entering the United States.
Generally, verbal declarations are
required from travelers arriving by land.
CBP continues to find ways to improve
the entry process through the use of
mobile technology to ensure it is safe
and efficient. To that end, CBP is testing
the operational effectiveness of a
process which allows travelers to use a
mobile app to submit information to
CBP prior to arrival. This process, called
Mobile Passport Control (MPC) which is
a mobile app that allows travelers to
self-segment upon arrival into the
United States—a process also known as
intelligent queuing. Another electronic
process that CBP is testing in lieu of the
paper 6059B is the Automated Passport
Control (APC). This is a CBP program
that facilitates the entry process for
travelers by providing self-service
kiosks in CBP’s Primary Inspection area
that travelers can use to make their
declaration.
A sample of CBP Form 6059B can be
found at: https://www.cbp.gov/travel/uscitizens/sample-declaration-form.
Current Actions: This submission is
being made to extend the expiration
date of this information collection with
no change to the burden hours or to the
information collected.
Type of Review: Extension (without
change).
Affected Public: Individuals.
CBP Form 6059B:
Estimated Number of Respondents:
34,006,000.
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Jkt 244001
Estimated Number of Total Annual
Responses: 34,006,000.
Estimated Time per Response: 4
minutes.
Estimated Total Annual Burden
Hours: 2,278,402.
Verbal Declarations:
Estimated Number of Respondents:
233,000,000.
Estimated Number of Total Annual
Responses: 233,000,000.
Estimated Time per Response: 10
seconds.
Estimated Total Annual Burden
Hours: 669,000.
APC Terminals:
Estimated Number of Respondents:
70,000,000.
Estimated Number of Total Annual
Responses: 70,000,000.
Estimated Time per Response: 2
minutes.
Estimated Total Annual Burden
Hours: 2,310,000.
MPC App:
Estimated Number of Respondents:
500,000.
Estimated Number of Total Annual
Responses: 500,000.
Estimated Time per Response: 2
minutes.
Estimated Total Annual Burden
Hours: 16,500.
Dated: July 17, 2018.
Seth D. Renkema,
Branch Chief, Economic Impact Analysis
Branch, U.S. Customs and Border Protection.
[FR Doc. 2018–15561 Filed 7–19–18; 8:45 am]
BILLING CODE 9111–14–P
DEPARTMENT OF HOMELAND
SECURITY
U.S. Customs and Border Protection
Notice of Issuance of Final
Determination Concerning Certain
Insufflation Tubing
U.S. Customs and Border
Protection, Department of Homeland
Security.
ACTION: Notice of final determination.
AGENCY:
This document provides
notice that U.S. Customs and Border
Protection (‘‘CBP’’) has issued a final
determination concerning the country of
origin of certain insufflation tubing.
Based upon the facts presented, CBP has
concluded that the country of origin of
the insufflation tubing in question is
China, for purposes of U.S. Government
procurement.
DATES: The final determination was
issued on July 13, 2018. A copy of the
final determination is attached. Any
party-at-interest, as defined in 19 CFR
SUMMARY:
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Sfmt 4703
34603
177.22(d), may seek judicial review of
this final determination within August
20, 2018.
FOR FURTHER INFORMATION CONTACT:
Yuliya A. Gulis, Valuation and Special
Programs Branch, Regulations and
Rulings, Office of Trade, at (202) 325–
0042.
SUPPLEMENTARY INFORMATION: Notice is
hereby given that on July 13, 2018,
pursuant to subpart B of Part 177, U.S.
Customs and Border Protection
Regulations (19 CFR part 177, subpart
B), CBP issued a final determination
concerning the country of origin of
certain insufflation tubing imported by
Global Resources International, Inc.
from the Dominican Republic, which
may be offered to the U.S. Government
under an undesignated government
procurement contract. This final
determination, HQ H298148, was issued
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 country of origin of
the insufflation tubing is China for
purposes of U.S. Government
procurement.
Section 177.29, CBP Regulations (19
CFR 177.29), provides that a notice of
final determination 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: July 13, 2018.
Alice A. Kipel,
Executive Director, Regulations and Rulings,
Office of Trade.
HQ H298148
July 13, 2018
OT:RR:CTF:VS H298148 YAG
CATEGORY: Origin
Ms. Christi Roos, LCB
M–PACT Solutions
P.O. Box 30209
4294 Swinnea Road
Memphis, TN 38118
RE: U.S. Government Procurement; Country
of Origin of Insufflation Tubing; Title III,
Trade Agreements Act of 1979 (19 U.S.C.
§ 2511 et seq.); Subpart B, Part 177, CBP
Regulations
Dear Ms. Roos:
This is in response to your correspondence
dated March 26, 2018, requesting a final
determination, on behalf of Global Resources
International, Inc. (‘‘Global Resources’’),
concerning the country of origin of certain
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Federal Register / Vol. 83, No. 140 / Friday, July 20, 2018 / Notices
insufflation tubing, pursuant to subpart B of
Part 177 of the U.S. Customs and Border
Protection (‘‘CBP’’) Regulations (19 C.F.R.
§ 177.21 et seq.).
We note that Global Resources is a partyat-interest within the meaning of 19 C.F.R.
§ 177.22(d)(1) and is entitled to request this
final determination.
FACTS:
Global Resources is the importer of
insufflation tubing. Insufflation tubing is
used to interconnect and deliver carbon
dioxide gas (‘‘CO2’’) from the insufflator
machine (CO2 ‘‘gas pump’’ or insufflator) to
the patient during laparoscopic surgery.
Insufflation tubing is typically 3 meters
(around 10 feet) in length, composed of a
long clear plastic tubing and a short blue
plastic tubing, with a filter attached about 30
centimeters (12 inches) from one end. The
purpose of the filter is to prevent fluid
backflow into the insufflator and to help
prevent contaminants from entering the
patient’s abdominal cavity. One end of the
tubing is comprised of a male Luer lock
fitting, which always connects to an
instrument that is inserted into the patient’s
abdomen. The other end connects to the
insufflator, which may contain any number
of types of fittings.
The country of origin of the clear tubing,
blue tubing, filter assembly, and fittings is
China. The insufflation tubing is assembled,
sterilized, packed, and labeled in the
Dominican Republic.
daltland on DSKBBV9HB2PROD with NOTICES
ISSUE:
What is the country of origin of the
insufflation tubing for purposes of U.S.
Government procurement?
LAW AND ANALYSIS:
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, pursuant to subpart B of
Part 177, 19 C.F.R. § 177.21 et seq., which
implements Title III of the Trade Agreements
Act of 1979 (‘‘TAA’’), as amended (19 U.S.C.
§ 2511 et seq.).
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 C.F.R. § 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 C.F.R. § 177.21. In this regard, CBP
recognizes that the Federal Acquisition
Regulations restrict the U.S. Government’s
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18:06 Jul 19, 2018
Jkt 244001
purchase of products to U.S.-made or
designated country end products for
acquisitions subject to the TAA. 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 ‘‘WTO GPA country end product’’ is
defined as an article that:
(1) Is wholly the growth, product, or
manufacture of a WTO GPA 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 a WTO GPA 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.
See 48 C.F.R. § 25.003.
The Dominican Republic is a WTO GPA
country. China is not. You assert that the
insufflation tubing at issue is a product of the
Dominican Republic for U.S. Government
procurement purposes because all of the
components of insufflation tubing, sourced
from China, meet the requisite tariff shift
rules under the Dominican Republic-Central
America-United States Free Trade Agreement
(‘‘DR–CAFTA’’). Please note that this is an
incorrect analysis to apply to determine the
country of origin for U.S. Government
procurement purposes. Rather, as set forth
below, the relevant test is ‘‘substantial
transformation.’’
In the Court of International Trade’s
decision in Energizer Battery, Inc. v. United
States, 190 F. Supp. 3d 1308 (2016), the court
interpreted the meaning of substantial
transformation as used in the Trade
Agreements Act of 1979 for purposes of
government procurement. Energizer involved
the determination of the country of origin of
a flashlight, referred to as the Generation II
flashlight, under the TAA. Other than a white
LED and a hydrogen getter, all of the
components of the Generation II flashlight
were of Chinese origin. The components
were imported into the United States where
they were assembled into the finished
Generation II flashlight.
The court reviewed the ‘‘name, character
and use’’ test in determining whether a
substantial transformation had occurred, and
reviewed various court decisions involving
substantial transformation determinations.
The court noted, citing Uniroyal, Inc. v.
United States, 3 CIT 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 that ‘‘when
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Sfmt 4703
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 CIT 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.
In reaching its decision in Energizer, the
court examined whether the imported
components retained their names after they
were assembled into the finished Generation
II flashlights. The court found ‘‘[t]he
constitutive components of the Generation II
flashlight do not lose their individual names
as a result [of] the post-importation
assembly.’’ The court also found that the
components had a pre-determined end-use as
parts and components of a Generation II
flashlight at the time of importation and did
not undergo a change in use due to the postimportation assembly process. Finally, the
court did not find the assembly process to be
sufficiently complex as to constitute a
substantial transformation. Thus, the court
found that Energizer’s imported components
did not undergo a change in name, character,
or use as a result of the post-importation
assembly of the components into a finished
Generation II flashlight. The court
determined that China, the source of all but
two components, was the correct country of
origin of the finished Generation II flashlights
under the government procurement
provisions of the TAA.
The assembly process of insufflation tubing
is similar to that of the Generation II
flashlight in Energizer. All of the components
are sourced from China, and there is no
evidence of a change in the shape or material
composition of the components. See also
Headquarters Ruling Letter (‘‘HQ’’) H035441,
dated September 11, 2008; and HQ 734214,
dated November 18, 1991. In other words, the
individual components do not lose their
separate identities as a result of the assembly
process in the Dominican Republic and do
not undergo a change in their pre-determined
uses. Considering the totality of the
information provided to CBP, and relying
upon the court’s application of substantial
transformation in Energizer, we find that the
country of origin of the assembled
insufflation tubing, produced as described
herein, is China.
HOLDING:
Based on the facts provided, insufflation
tubing will be considered a product of China
for purposes of U.S. Government
procurement.
Notice of this final determination will be
given in the Federal Register, as required by
19 C.F.R. § 177.29. Any party-at-interest other
than the party which requested this final
determination may request, pursuant to 19
C.F.R. § 177.31, that CBP reexamine the
matter anew and issue a new final
determination. Pursuant to 19 C.F.R.
§ 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.
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Federal Register / Vol. 83, No. 140 / Friday, July 20, 2018 / Notices
Sincerely,
Alice A. Kipel,
Executive Director Regulations and Rulings
Office of Trade.
[FR Doc. 2018–15536 Filed 7–19–18; 8:45 am]
BILLING CODE P
DEPARTMENT OF HOMELAND
SECURITY
Federal Emergency Management
Agency
[Internal Agency Docket No. FEMA–4371–
DR; Docket ID FEMA–2018–0001]
New Hampshire; Major Disaster and
Related Determinations
Federal Emergency
Management Agency, DHS.
ACTION: Notice.
AGENCY:
This is a notice of the
Presidential declaration of a major
disaster for the State of New Hampshire
(FEMA–4371–DR), dated June 8, 2018,
and related determinations.
DATES: The declaration was issued June
8, 2018.
FOR FURTHER INFORMATION CONTACT:
Dean Webster, Office of Response and
Recovery, Federal Emergency
Management Agency, 500 C Street SW,
Washington, DC 20472, (202) 646–2833.
SUPPLEMENTARY INFORMATION: Notice is
hereby given that, in a letter dated June
8, 2018, the President issued a major
disaster declaration under the authority
of the Robert T. Stafford Disaster Relief
and Emergency Assistance Act, 42
U.S.C. 5121 et seq. (the ‘‘Stafford Act’’),
as follows:
daltland on DSKBBV9HB2PROD with NOTICES
SUMMARY:
I have determined that the damage in
certain areas of the State of New Hampshire
resulting from a severe winter storm and
snowstorm during the period of March 13–
14, 2018, is of sufficient severity and
magnitude to warrant a major disaster
declaration under the Robert T. Stafford
Disaster Relief and Emergency Assistance
Act, 42 U.S.C. 5121 et seq. (the ‘‘Stafford
Act’’). Therefore, I declare that such a major
disaster exists in the State of New
Hampshire.
In order to provide Federal assistance, you
are hereby authorized to allocate from funds
available for these purposes such amounts as
you find necessary for Federal disaster
assistance and administrative expenses.
You are authorized to provide Public
Assistance in the designated areas and
Hazard Mitigation throughout the State. You
are further authorized to provide snow
assistance under the Public Assistance
program for a limited period of time during
or proximate to the incident period.
Consistent with the requirement that Federal
assistance be supplemental, any Federal
funds provided under the Stafford Act for
Hazard Mitigation will be limited to 75
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18:06 Jul 19, 2018
Jkt 244001
percent of the total eligible costs. Federal
funds provided under the Stafford Act for
Public Assistance also will be limited to 75
percent of the total eligible costs, with the
exception of projects that meet the eligibility
criteria for a higher Federal cost-sharing
percentage under the Public Assistance
Alternative Procedures Pilot Program for
Debris Removal implemented pursuant to
section 428 of the Stafford Act.
Further, you are authorized to make
changes to this declaration for the approved
assistance to the extent allowable under the
Stafford Act.
DEPARTMENT OF HOMELAND
SECURITY
The Federal Emergency Management
Agency (FEMA) hereby gives notice that
pursuant to the authority vested in the
Administrator, under Executive Order
12148, as amended, James N. Russo, of
FEMA is appointed to act as the Federal
Coordinating Officer for this major
disaster.
The following areas of the State of
New Hampshire have been designated
as adversely affected by this major
disaster:
34605
SUMMARY:
Carroll, Rockingham, and Stafford Counties
for Public Assistance.
Carroll, Rockingham, and Stafford Counties
for snow assistance under the Public
Assistance program for any continuous 48hour period during or proximate to the
incident period.
All areas within the State of New
Hampshire are eligible for assistance under
the Hazard Mitigation Grant Program.
The following Catalog of Federal Domestic
Assistance Numbers (CFDA) are to be used
for reporting and drawing funds: 97.030,
Community Disaster Loans; 97.031, Cora
Brown Fund; 97.032, Crisis Counseling;
97.033, Disaster Legal Services; 97.034,
Disaster Unemployment Assistance (DUA);
97.046, Fire Management Assistance Grant;
97.048, Disaster Housing Assistance to
Individuals and Households In Presidentially
Declared Disaster Areas; 97.049,
Presidentially Declared Disaster Assistance—
Disaster Housing Operations for Individuals
and Households; 97.050, Presidentially
Declared Disaster Assistance to Individuals
and Households—Other Needs; 97.036,
Disaster Grants—Public Assistance
(Presidentially Declared Disasters); 97.039,
Hazard Mitigation Grant.
Brock Long,
Administrator, Federal Emergency
Management Agency.
[FR Doc. 2018–15599 Filed 7–19–18; 8:45 am]
BILLING CODE 9111–23–P
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Federal Emergency Management
Agency
[Internal Agency Docket No. FEMA–4370–
DR; Docket ID FEMA–2018–0001]
New Hampshire; Major Disaster and
Related Determinations
Federal Emergency
Management Agency, DHS.
ACTION: Notice.
AGENCY:
This is a notice of the
Presidential declaration of a major
disaster for the State of New Hampshire
(FEMA–4370–DR), dated June 8, 2018,
and related determinations.
DATES: The declaration was issued June
8, 2018.
FOR FURTHER INFORMATION CONTACT:
Dean Webster, Office of Response and
Recovery, Federal Emergency
Management Agency, 500 C Street SW,
Washington, DC 20472, (202) 646–2833.
SUPPLEMENTARY INFORMATION: Notice is
hereby given that, in a letter dated June
8, 2018, the President issued a major
disaster declaration under the authority
of the Robert T. Stafford Disaster Relief
and Emergency Assistance Act, 42
U.S.C. 5121 et seq. (the ‘‘Stafford Act’’),
as follows:
I have determined that the damage in
certain areas of the State of New Hampshire
resulting from a severe storm and flooding
during the period of March 2–8, 2018, is of
sufficient severity and magnitude to warrant
a major disaster declaration under the Robert
T. Stafford Disaster Relief and Emergency
Assistance Act, 42 U.S.C. 5121 et seq. (the
‘‘Stafford Act’’). Therefore, I declare that such
a major disaster exists in the State of New
Hampshire.
In order to provide Federal assistance, you
are hereby authorized to allocate from funds
available for these purposes such amounts as
you find necessary for Federal disaster
assistance and administrative expenses.
You are authorized to provide Public
Assistance in the designated area and Hazard
Mitigation throughout the State. Consistent
with the requirement that Federal assistance
be supplemental, any Federal funds provided
under the Stafford Act for Hazard Mitigation
will be limited to 75 percent of the total
eligible costs. Federal funds provided under
the Stafford Act for Public Assistance also
will be limited to 75 percent of the total
eligible costs, with the exception of projects
that meet the eligibility criteria for a higher
Federal cost-sharing percentage under the
Public Assistance Alternative Procedures
Pilot Program for Debris Removal
implemented pursuant to section 428 of the
Stafford Act.
Further, you are authorized to make
changes to this declaration for the approved
assistance to the extent allowable under the
Stafford Act.
E:\FR\FM\20JYN1.SGM
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]]>Agencies
[Federal Register Volume 83, Number 140 (Friday, July 20, 2018)]
[Notices]
[Pages 34603-34605]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-15536]
-----------------------------------------------------------------------
DEPARTMENT OF HOMELAND SECURITY
U.S. Customs and Border Protection
Notice of Issuance of Final Determination Concerning Certain
Insufflation Tubing
AGENCY: U.S. Customs and Border Protection, Department of Homeland
Security.
ACTION: Notice of final determination.
-----------------------------------------------------------------------
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 insufflation tubing. Based upon the facts
presented, CBP has concluded that the country of origin of the
insufflation tubing in question is China, for purposes of U.S.
Government procurement.
DATES: The final determination was issued on July 13, 2018. 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 August 20, 2018.
FOR FURTHER INFORMATION CONTACT: Yuliya A. Gulis, Valuation and Special
Programs Branch, Regulations and Rulings, Office of Trade, at (202)
325-0042.
SUPPLEMENTARY INFORMATION: Notice is hereby given that on July 13,
2018, pursuant to subpart B of Part 177, U.S. Customs and Border
Protection Regulations (19 CFR part 177, subpart B), CBP issued a final
determination concerning the country of origin of certain insufflation
tubing imported by Global Resources International, Inc. from the
Dominican Republic, which may be offered to the U.S. Government under
an undesignated government procurement contract. This final
determination, HQ H298148, was issued 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 country of origin of the
insufflation tubing is China for purposes of U.S. Government
procurement.
Section 177.29, CBP Regulations (19 CFR 177.29), provides that a
notice of final determination 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: July 13, 2018.
Alice A. Kipel,
Executive Director, Regulations and Rulings, Office of Trade.
HQ H298148
July 13, 2018
OT:RR:CTF:VS H298148 YAG
CATEGORY: Origin
Ms. Christi Roos, LCB
M-PACT Solutions
P.O. Box 30209
4294 Swinnea Road
Memphis, TN 38118
RE: U.S. Government Procurement; Country of Origin of Insufflation
Tubing; Title III, Trade Agreements Act of 1979 (19 U.S.C. Sec.
2511 et seq.); Subpart B, Part 177, CBP Regulations
Dear Ms. Roos:
This is in response to your correspondence dated March 26, 2018,
requesting a final determination, on behalf of Global Resources
International, Inc. (``Global Resources''), concerning the country
of origin of certain
[[Page 34604]]
insufflation tubing, pursuant to subpart B of Part 177 of the U.S.
Customs and Border Protection (``CBP'') Regulations (19 C.F.R. Sec.
177.21 et seq.).
We note that Global Resources is a party-at-interest within the
meaning of 19 C.F.R. Sec. 177.22(d)(1) and is entitled to request
this final determination.
FACTS:
Global Resources is the importer of insufflation tubing.
Insufflation tubing is used to interconnect and deliver carbon
dioxide gas (``CO2'') from the insufflator machine
(CO2 ``gas pump'' or insufflator) to the patient during
laparoscopic surgery. Insufflation tubing is typically 3 meters
(around 10 feet) in length, composed of a long clear plastic tubing
and a short blue plastic tubing, with a filter attached about 30
centimeters (12 inches) from one end. The purpose of the filter is
to prevent fluid backflow into the insufflator and to help prevent
contaminants from entering the patient's abdominal cavity. One end
of the tubing is comprised of a male Luer lock fitting, which always
connects to an instrument that is inserted into the patient's
abdomen. The other end connects to the insufflator, which may
contain any number of types of fittings.
The country of origin of the clear tubing, blue tubing, filter
assembly, and fittings is China. The insufflation tubing is
assembled, sterilized, packed, and labeled in the Dominican
Republic.
ISSUE:
What is the country of origin of the insufflation tubing for
purposes of U.S. Government procurement?
LAW AND ANALYSIS:
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,
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
(``TAA''), as amended (19 U.S.C. Sec. 2511 et seq.).
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).
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 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. 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 ``WTO GPA country end product'' is defined as an article that:
(1) Is wholly the growth, product, or manufacture of a WTO GPA
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 a WTO GPA 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.
See 48 C.F.R. Sec. 25.003.
The Dominican Republic is a WTO GPA country. China is not. You
assert that the insufflation tubing at issue is a product of the
Dominican Republic for U.S. Government procurement purposes because
all of the components of insufflation tubing, sourced from China,
meet the requisite tariff shift rules under the Dominican Republic-
Central America-United States Free Trade Agreement (``DR-CAFTA'').
Please note that this is an incorrect analysis to apply to determine
the country of origin for U.S. Government procurement purposes.
Rather, as set forth below, the relevant test is ``substantial
transformation.''
In the Court of International Trade's decision in Energizer
Battery, Inc. v. United States, 190 F. Supp. 3d 1308 (2016), the
court interpreted the meaning of substantial transformation as used
in the Trade Agreements Act of 1979 for purposes of government
procurement. Energizer involved the determination of the country of
origin of a flashlight, referred to as the Generation II flashlight,
under the TAA. Other than a white LED and a hydrogen getter, all of
the components of the Generation II flashlight were of Chinese
origin. The components were imported into the United States where
they were assembled into the finished Generation II flashlight.
The court reviewed the ``name, character and use'' test in
determining whether a substantial transformation had occurred, and
reviewed various court decisions involving substantial
transformation determinations. The court noted, citing Uniroyal,
Inc. v. United States, 3 CIT 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 that ``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 CIT 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.
In reaching its decision in Energizer, the court examined
whether the imported components retained their names after they were
assembled into the finished Generation II flashlights. The court
found ``[t]he constitutive components of the Generation II
flashlight do not lose their individual names as a result [of] the
post-importation assembly.'' The court also found that the
components had a pre-determined end-use as parts and components of a
Generation II flashlight at the time of importation and did not
undergo a change in use due to the post-importation assembly
process. Finally, the court did not find the assembly process to be
sufficiently complex as to constitute a substantial transformation.
Thus, the court found that Energizer's imported components did not
undergo a change in name, character, or use as a result of the post-
importation assembly of the components into a finished Generation II
flashlight. The court determined that China, the source of all but
two components, was the correct country of origin of the finished
Generation II flashlights under the government procurement
provisions of the TAA.
The assembly process of insufflation tubing is similar to that
of the Generation II flashlight in Energizer. All of the components
are sourced from China, and there is no evidence of a change in the
shape or material composition of the components. See also
Headquarters Ruling Letter (``HQ'') H035441, dated September 11,
2008; and HQ 734214, dated November 18, 1991. In other words, the
individual components do not lose their separate identities as a
result of the assembly process in the Dominican Republic and do not
undergo a change in their pre-determined uses. Considering the
totality of the information provided to CBP, and relying upon the
court's application of substantial transformation in Energizer, we
find that the country of origin of the assembled insufflation
tubing, produced as described herein, is China.
HOLDING:
Based on the facts provided, insufflation tubing will be
considered a product of China for purposes of U.S. Government
procurement.
Notice of this final determination will be given in the Federal
Register, as required by 19 C.F.R. Sec. 177.29. Any party-at-
interest other than the party which requested this final
determination may request, pursuant to 19 C.F.R. Sec. 177.31, that
CBP reexamine the matter anew and issue a new final determination.
Pursuant to 19 C.F.R. Sec. 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.
[[Page 34605]]
Sincerely,
Alice A. Kipel,
Executive Director Regulations and Rulings Office of Trade.
[FR Doc. 2018-15536 Filed 7-19-18; 8:45 am]
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