RR:IT:VA 546569 KCC

Port Director
U.S. Customs Service
P.O. Box H
San Luis, Arizona 85349

RE: Application for Further Review of Protest 2608-96-100001; Article 509; NAFTA; inventory management system; FIFO; subheading 8528.10.28, HTSUS; television; color picture tube; GN 12(t)/85.85, HTSUS; Section I, Part IV, Section 7(16)(a) of the Appendix to the ROR; Schedule X, Part 1, Section 1 of the Appendix to the ROR; Schedule X, Part I, Section 2 of the Appendix to the ROR

Dear Port Director:

This is in regard to the Application for Further Review of Protest 2608-96-100001 dated March 12, 1996, concerning the eligibility of certain television receivers, imported from Mexico, for preferential tariff treatment under the North American Free Trade Agreement ("NAFTA"). Additional information submitted by protestant on March 12, and April 12, 1996, was taken into consideration in reaching this decision. We regret the delay in responding.

FACTS:

The merchandise at issue is 19 inch color television receivers ("televisions") entered into the U.S. from Mexico from January 1, 1994, through December 31, 1994. At importation, Daewoo Electronics Corporation of America ("Daewoo") entered the merchandise under subheading 8528.10.2835, Harmonized Tariff Schedule of the United States ("HTSUS"), claiming preferential tariff treatment pursuant to the NAFTA. You denied NAFTA treatment to the imported merchandise based on the position that Daewoo Electronics de Mexico, S.A. de C.V. ("Delmex") filed NAFTA claims pursuant to an inventory management system other than the First In First Out ("FIFO") inventory management system found in Delmex's accounting books.

Daewoo claims that the documentation submitted in support of the protest demonstrates that Delmex, using the First In First Out ("FIFO") inventory management method, identifies the televisions which contain originating color picture tubes ("CPTs"). Daewoo notes that the FIFO method is one of four acceptable inventory management methods under Schedule X, Part I, Section 2 of the Appendix to the NAFTA Rules of Origin Regulations (19 CFR Part 181 app.; NAFTA Rules of Origin Regulations, as amended by 60 Fed. Reg. 46,334, 46249, T.D. 95-68, 29:38 Cust. Bull. 1; the "ROR"). Daewoo states that the incoming CPTs are first segregated by origin, i.e., Toshiba CPTs of U.S. origin (originating) and Orion CPTs of Korean origin (non-originating), and thereafter the CPTs are withdrawn for production using a FIFO inventory management method. Daewoo states that Delmex's inventory management system assures that throughout the manufacturing and shipping process, one can readily identify which televisions are manufactured with Toshiba and Orion CPTs. Thus, Daewoo claims that the televisions containing the Toshiba CPTs are entitled to preferential tariff treatment under the NAFTA. This office has reviewed all the documents submitted by Daewoo in support of its protest.

ISSUE:

Is Delmex's inventory management system one of the inventory management systems described in Schedule X, Part I, Section 2 of the Appendix to the ROR?

LAW AND ANALYSIS:

The imported merchandise, televisions are classified under subheading 8528.10.28, HTSUS, which provides for "Television receivers (including video monitors and video projectors), whether or not incorporating radiobroadcast receivers or sound or video recording or reproducing apparatus...Color...Non-high definition, having a single picture tube intended for direct viewing (non-projection type), with a video display diagonal exceeding 35.56 cm...Other...." For purposes of this determination, pursuant to General Note ("GN") 12(t)/85.85, HTSUS, televisions classified under subheading 8528.10.28, HTSUS, are eligible for preferential tariff treatment under the NAFTA, if the televisions contain originating CPTs.

During 1994, Delmex used originating CPTs, Toshiba/U.S. origin, and non-originating CPTs, Orion/Korean origin. Thus, only the televisions incorporating originating CPTs would qualify for NAFTA preferential tariff treatment. Thus, Delmex must account for the originating and non-originating CPTs during inventory, manufacture and shipping in order to qualify for preferential tariff treatment. However, the originating and non-originating CPTs are funigible materials. Section I, Part IV, Section 7(16)(a) of the Appendix to the ROR states that:

For the purpose of determining whether a good is an originating good...where originating materials and non-originating materials that are fungible materials are used in the production of the good, the determination of whether the materials are originating materials may, at the choice of the producer of the good or the person from whom the producer acquired the materials, be made on the basis of any of the applicable inventory management methods set out in Schedule X....

As Daewoo has noted there are four acceptable inventory management methods set forth under Schedule X, Part I, Section 2 of the Appendix to the ROR. They are:

(a) specific identification method; (b) FIFO method; (c) LIFO method; and (d) average method.

We note that during the NAFTA verification process for the televisions Daewoo has claimed that Delmex has had various inventory management systems in place. During the May 1995 NAFTA verification visit to Delmex, Delmex representatives were unable to specify their inventory management system. In an October 31, 1995, draft memorandum to Nogales Customs from R.L. Jones Customshouse Brokers, Inc., Daewoo stated that Delmex had established a variation to the "average type" inventory management method. Thereafter, in a December 22, 1995, letter to Nogales Customs, from R.L. Jones Customshouse Brokers, Inc., Daewoo claimed to have submitted to Customs on June 2, 1994, detailed documentation that supports Delmex's "specific" inventory management system. In filing this protest, Daewoo claimed that the documentation submitted demonstrates that Delmex, using the FIFO inventory management method, properly identified the televisions which contain originating CPTs. Thereafter, at a follow-up NAFTA verification visit in May 1996, Delmex stated that it had a specific identification system under its FIFO inventory management system.

The FIFO inventory management method is defined in Schedule X, Part 1, Section 1 of the Appendix to the ROR as:

[T]he method by which the origin of fungible materials first received in materials inventory is considered to be the origin of fungible materials first withdrawn from materials inventory.

Daewoo claims that the documentation submitted demonstrates that Delmex had a FIFO inventory management system in place during 1994. However, an analysis of the explanations of the submitted documents suggests that an inventory management system similar to a specific identification system was used in the production facilities. The CPTs are imported into Mexico with a "PEDIMENTO DE IMPORTACION" or Mexican Import Permit. At Delmex's receiving warehouse, the CPTs are received and stored separately according to their origin. When the production department executes an order, CPTs are pulled from inventory. The number of CPTs, a description, the tube type and the manufacturer are recorded on a form entitled "ALMACEN DE MATERIALS - NOTA DE SALIDA." In the production department a "lot control report" is utilized to keep track of television lots during production. After completion of the television, it is sent to the packing department where a red tag is used to differentiate originating from non-originating televisions, based on the incorporated CPTs. The red tag is a small (approximately 3/4 inch) red sticker in the form of a circle. The red tag is adhered to the top right hand corner of the outer box of the television incorporating an originating CPT. However, it is noted that Customs is unable to verify that the red tag system was in place in 1994. After packing and random quality control testing the finished television is sent to the finished goods warehouse. This action is documented by a department transfer document. The department transfer document notes the CPTs origin. In the warehouse, originating and non-originating television sets are stored separately. They remain segregated for loading and shipment to their ultimate destination. The "FACTURAs" or invoices between Delmex and Daewoo include a description of the good imported into the U.S., televisions, as well as a description of the components incorporated into the television. The component description includes a reference to the "PEDIMENTO DE IMPORTACION" number. Daewoo states that one "PEDIMENTO DE IMPORTACION" number is used on the export documents until its original quantity of CPTs is depleted.

Nevertheless, the documentation submitted in support of the protest confirms that the information needed to apply a FIFO inventory management system is found in Delmex's records. Pursuant to Schedule X, Part I, Section 2 of the Appendix to the ROR, under a FIFO inventory management method, once the CPTs are incorporated in the television and exit the manufacture process, the televisions are designated originating or non-originating based on the first CPTs warehoused. It does not matter what the CPT's actual origin is when incorporated into the television. The FIFO inventory management method establishes originating versus non-originating televisions. The invoices to Daewoo describe the incorporated CPTs by listing the "PEDIMENTO DE IMPORTACION" number as first received in its warehouse until the quantity is depleted and the next "PEDIMENTO DE IMPORTACION" number is needed. Using a FIFO inventory management system Delmex should assign originating status to the televisions based on the origin of the CPTs as listed on the "PEDIMENTO DE IMPORTACION."

Delmex's FIFO inventory management system is a proper inventory management system pursuant to Schedule X, Part I, Section 2 of the Appendix to the ROR. The definition of the FIFO inventory management method in the ROR requires that a proper paper accounting system be established, i.e., "the origin of fungible materials first received in materials inventory is considered to be the origin of fungible materials first withdrawn from materials inventory." In this situation, we are not concerned with the physical movement of the materials in Delmex's production facilities. We need only verify that NAFTA claims correlate to Delmex's records which establish the FIFO inventory management system. Applying Delmex's FIFO inventory management system to Daewoo's importations establishes that Daewoo has made NAFTA claims on non-originating televisions, i.e., the "PEDIMENTO DE IMPORTACION" number identified on the invoice to Daewoo refers to Korean, non-originating, CPTs. Our analysis has determined that some 5,400 Daewoo NAFTA claims are not eligible for preferential tariff treatment.

HOLDING:

Based on the information submitted, Daewoo has established that the documentation submitted in support of the protest confirms that the information needed to apply a FIFO inventory management system is found in Delmex's records. However, application of Delmex's FIFO inventory management system to Daewoo's importations indicate that some 5,400 NAFTA claims are not eligible for preferential tariff treatment.

The protest is GRANTED in part and DENIED in part as set forth above. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065 dated August 4, 1993, Subject: Revised Protest Directive, this decision, together with the Customs Form 19, should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,

Acting Director
International Trade Compliance
Division