Notice of Issuance of Final Determination Concerning a Transceiver, 12487-12489 [2021-04334]
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Federal Register / Vol. 86, No. 40 / Wednesday, March 3, 2021 / Notices
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
National Institutes of Health
National Institute of Diabetes and
Digestive and Kidney Diseases; Notice
of Closed Meeting
Pursuant to section 10(d) of the
Federal Advisory Committee Act, as
amended, notice is hereby given of the
following meeting.
The meeting will be closed to the
public in accordance with the
provisions set forth in sections
552b(c)(4) and 552b(c)(6), Title 5 U.S.C.,
as amended. The grant applications and
the discussions could disclose
confidential trade secrets or commercial
property such as patentable material,
and personal information concerning
individuals associated with the grant
applications, the disclosure of which
would constitute a clearly unwarranted
invasion of personal privacy.
Name of Committee: National Institute of
Diabetes and Digestive and Kidney Diseases
Special Emphasis Panel; Urology RC2
applications.
Date: April 2, 2021.
Time: 11:00 a.m. to 12:30 p.m.
Agenda: To review and evaluate grant
applications.
Place: National Institutes of Health, Two
Democracy Plaza, 6707 Democracy
Boulevard, Bethesda, MD 20892, (Virtual
Meeting).
Contact Person: Ryan G. Morris, Ph.D.,
Scientific Review Officer, Review Branch,
Division of Extramural Activities, NIDDK,
National Institutes of Health, 6707
Democracy Boulevard, Room 7015, Bethesda,
MD 20892–2542, 301–594–4721,
ryan.morris@nih.gov.
(Catalogue of Federal Domestic Assistance
Program Nos. 93.847, Diabetes,
Endocrinology and Metabolic Research;
93.848, Digestive Diseases and Nutrition
Research; 93.849, Kidney Diseases, Urology
and Hematology Research, National Institutes
of Health, HHS)
Dated: February 25, 2021.
Miguelina Perez,
Program Analyst, Office of Federal Advisory
Committee Policy.
[FR Doc. 2021–04365 Filed 3–2–21; 8:45 am]
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DEPARTMENT OF HEALTH AND
HUMAN SERVICES
National Institutes of Health
National Institute on Deafness and
Other Communication Disorders;
Notice of Closed Meeting
Pursuant to section 10(d) of the
Federal Advisory Committee Act, as
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amended, notice is hereby given of the
following meeting.
The meeting will be closed to the
public in accordance with the
provisions set forth in sections
552b(c)(4) and 552b(c)(6), Title 5 U.S.C.,
as amended. The grant applications and
the discussions could disclose
confidential trade secrets or commercial
property such as patentable material,
and personal information concerning
individuals associated with the grant
applications, the disclosure of which
would constitute a clearly unwarranted
invasion of personal privacy.
Dated: February 26, 2021.
Miguelina Perez,
Program Analyst, Office of Federal Advisory
Committee Policy.
Name of Committee: National Institute on
Deafness and Other Communication
Disorders Special Emphasis Panel;
Fellowship Review.
Date: March 9, 2021.
Time: 11:00 a.m. to 12:00 p.m.
Agenda: To review and evaluate grant
applications.
Place: National Institutes of Health, 6100
Executive Boulevard, Rockville, MD 20852,
(Telephone Conference Call).
Contact Person: Eliane Lazar-Wesley,
Ph.D., Scientific Review Officer, Scientific
Review Branch, Division of Extramural
Activities, 6001 Executive Boulevard, Room
8339, MSC 9670, Bethesda, MD 20892–8401,
(301) 496–8683, el6r@nih.gov.
This notice is being published less than 15
days prior to the meeting due to the timing
limitations imposed by the review and
funding cycle.
(Catalogue of Federal Domestic Assistance
Program Nos. 93.173, Biological Research
Related to Deafness and Communicative
Disorders, National Institutes of Health, HHS)
AGENCY:
Dated: February 26, 2021.
Miguelina Perez,
Program Analyst, Office of Federal Advisory
Committee Policy.
[FR Doc. 2021–04363 Filed 3–2–21; 8:45 am]
BILLING CODE 4140–01–P
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
National Institutes of Health
National Institute on Deafness and
Other Communication Disorders;
Amended Notice of Meeting
Notice is hereby given of a change in
the meeting of the National Institute on
Deafness and Other Communication
Disorders Special Emphasis Panel,
which was published in the Federal
Register on January 26, 2021, 86FR7101.
This meeting is being amended to
change the SRO to Eliane Lazar-Wesley.
The meeting is closed to the public.
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DEPARTMENT OF HOMELAND
SECURITY
U.S. Customs and Border Protection
Notice of Issuance of Final
Determination Concerning a
Transceiver
U.S. Customs and Border
Protection, Department of Homeland
Security.
ACTION: Notice of final determination.
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 Australianorigin 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).
SUMMARY:
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
SUPPLEMENTARY INFORMATION:
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Federal Register / Vol. 86, No. 40 / Wednesday, March 3, 2021 / Notices
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
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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
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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
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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 twentytwo 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.
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Federal Register / Vol. 86, No. 40 / Wednesday, March 3, 2021 / Notices
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,
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17:29 Mar 02, 2021
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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
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12489
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-atinterest 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]
BILLING CODE 9111–14–P
DEPARTMENT OF HOMELAND
SECURITY
[Docket Number DHS–2021–0004]
Agency Information Collection
Activities: COVID–19 Contact Tracing,
COVID–19 Contact Tracing Scripts,
COVID–19 Contact Tracing Form
Department of Homeland
Security (DHS).
ACTION: 30-Day notice and request for
comments; extension without change of
a currently approved Collection, DHS–
2021–0004.
AGENCY:
The Department of Homeland
Security, will submit the following
Information Collection Request (ICR) to
the Office of Management and Budget
(OMB) for review and clearance in
accordance with the Paperwork
Reduction Act of 1995. DHS previously
published this information collection
request (ICR) in the Federal Register on
Friday, January 15, 2021 for a 30-day
public comment period. No comment
was received by DHS. The purpose of
this notice is to allow additional 30days for public comments.
DATES: The comment period for the
information collection request
published on January 15, 2021 at 86 FR
4107 is extended. Comments are
encouraged and will be accepted until
April 2, 2021. This process is conducted
in accordance with 5 CFR 1320.1
ADDRESSES: Written comments and
recommendations for the proposed
information collection should be sent
within 30 days of publication of this
notice to www.reginfo.gov/public/do/
PRAMain. Find this particular
information collection by selecting
‘‘Currently under 30-day Review—Open
for Public Comments’’ or by using the
search function.
SUPPLEMENTARY INFORMATION: COVID–19
Contact Tracing information is
necessary to support the President’s
SUMMARY:
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]]>Agencies
[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.
-----------------------------------------------------------------------
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]
BILLING CODE 9111-14-P
