Mar-2-05 R:C:S 558765 AT

Mr. Philip Freeman
Cain Customs Brokers
Progreso International Bridge
P.O. Box 10
Progreso, TX 78579

RE: Classification and eligibility of NAFTA preferences for printed circuit board assemblies imported from Mexico; Applicability of subheading 9802.00.80, HTSUS, to printed circuit boards assembled in Mexico; Country of origin marking requirements for imported printed board assemblies; Article 509; NAFTA Duty Preference Rules; General Note 12(b), HTSUS; NAFTA Marking Rules; "originating goods"; assembly; ultimate purchaser; 19 CFR 102.11; 19 CFR 134.35(b) Dear Mr. Freeman:

This is in response to your letter dated September 13, 1994, on behalf of Ericson Manufacturing Company ("Ericson") requesting the status as an originating good under the North American Free Trade Agreement ("NAFTA"), eligibility for a partial duty exemption under subheading 9802.00.80, Harmonized Tariff Schedule of the United States ("HTSUS"), and country of origin marking requirements for printed circuit board ("PCB") assemblies imported from Mexico. Samples were submitted with your letter. We regret the delay in responding.

FACTS:

According to your submission, Ericson intends to import PCB assemblies from Mexico. You state that the PCB assemblies will be assembled in Mexico from U.S., Taiwanese, Japanese, Korean, Malaysian and Chinese components consisting of transistors, resistors, capacitors, diodes and integrated circuits. Assembly of the PCB assemblies will consist of placement of parts and soldering the individual parts onto the circuit boards (also referred to by the industry as "stuffing" the boards). Ericson intends to use the imported PCB assemblies in the manufacture of industrial plug ground fault circuit interrupters in the U.S. An industrial plug ground fault circuit interrupter is a circuit disconnecting device used to protect operators of electrical equipment, such as hand tools, from electrical shock and to prevent damage to the equipment from heat or fire.

You have requested the status as an originating good under NAFTA, eligibility for a partial duty exemption under subheading 9802.00.80, HTSUS, and country of origin marking requirements for the PCB assemblies that are to be imported from Mexico for use in the manufacture of industrial plug ground fault circuit interrupters in the U.S.

ISSUES:

1. Whether the PCB assemblies imported from Mexico qualify as originating goods for purposes of the duty preference under NAFTA.

2. Whether the PCB assemblies imported from Mexico are eligible for a partial duty exemption under subheading 9802.00.80, HTSUS.

3. What are the country of origin marking requirements for PCB assemblies imported from Mexico to be used in the manufacture of industrial plug ground fault circuit interrupters in the U.S.?

LAW AND ANALYSIS:

NAFTA ELIGIBILITY:

Classification of merchandise under the HTSUS is in accordance with the General Rules of Interpretation (GRI's). GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes.

According to the information provided, the PCB assembly is a part of an industrial plug ground fault circuit interrupter which is a circuit disconnecting device used to protect operators of electrical equipment, such as hand tools, from electrical shock and to prevent damage to the equipment from heat or fire. In NY 899377, dated July 6, 1994, the Area Director of New York Seaport determined that the ground fault circuit interrupter incorporated an electronic circuitry which enabled it to sense small imbalances in the circuit caused by current leakage to ground, and in a fraction of a second, shuts off the electrical circuit. Because of this capability, the ground fault circuit interrupter was classified under subheading 8536.30.80, HTSUS, which provides for other electrical apparatus for protecting electrical circuits, for a voltage not exceeding 1,000 Volts.

Because the PCB assembly is a part of the ground fault circuit interrupter, we find that it is classifiable under subheading 8538.90.20, which provides for: "[p]arts suitable for use solely or principally with the apparatus of heading 8535, 8536 or 8537: [o]ther: [p]rinted circuit assemblies .... "If the PCB assembly meets the eligibility requirements of NAFTA, it can be entered under a free rate of duty.

To be eligible for tariff preferences under the North American Free Trade Agreement (NAFTA), goods must be "originating goods" within the rules of origin in General Note 12(b), HTSUS. General Note 12(b), HTSUS, states in pertinent part:

[f]or the purposes of this note, goods imported into the customs territory of the United States are eligible for the tariff treatment and quantitative limitations set forth in the tariff schedule as "goods originating in the territory of a NAFTA party" only if--

(I) they are goods wholly obtained or produced entirely in the territory of Canada, Mexico, and/or the United States; or

(ii) that they have been transformed in the territory of Canada, Mexico and/or the United States so that--

(A) except as provided in subdivision (f) of this note, each of the non-originating materials used in the production of such goods undergoes a change in tariff classification described in subdivisions (r), (s) and (t) of this note or the rules set forth therein, or

(B) the goods otherwise satisfy the applicable requirements of subdivisions (r), (s) and (t) where no change in tariff classification is required, and the goods satisfy all other requirements of this note... Because the PCB assemblies contain parts from countries other than Mexico, Canada, and/or the United States, General Note 12(b)(I), HTSUS, does not apply. Therefore, we must resort to General Note 12(b)(ii)(A), HTSUS.

The change in tariff classification rules set forth in General Note 12(t)/85.122, HTSUS, states as follows: "[a] change to subheading 8538 from any other heading."

Therefore, any non-originating materials used in the production of the PCB assemblies must be classified under a tariff heading other than heading 8538, HTSUS. The non-originating PCB, transistors, resistors, capacitors, diodes and integrated circuits are all provided for under headings other than heading 8538, HTSUS. Because a change in tariff classification does occur and meets the terms of General Note 12(t)/85.122, HTSUS, we find that the PCB assemblies are eligible for preferential tariff treatment under the NAFTA. Eligibility under subheading 9802.00.80, HTSUS

Subheading 9802.00.80, HTSUS, provides a partial duty exemption for:

[a]rticles assembled abroad in whole or in part of fabricated components, the product of the United States, which (a) were exported in a condition ready for assembly without further fabrication, (b) have not lost their physical identity in such articles by change in form, shape or otherwise, and (c) have not been advanced in value or improved in condition abroad except by being assembled and except by operations incidental to the assembly process such as cleaning, lubricating, and painting...

All three requirements of subheading 9802.00.80, HTSUS, must be satisfied before a component may receive a duty allowance. An article entered under this tariff provision is subject to duty upon the full value of the imported assembled article, less the cost or value of such U.S. components, upon compliance with the documentary requirements of section 10.24, Customs Regulations (19 CFR 10.24).

Section 10.14(a), Customs Regulations (19 CFR 10.14(a)), states in part that:

[t]he components must be in condition ready for assembly without further fabrication at the time of their exportation from the United States to qualify for the exemption. Components will not lose their entitlement to the exemption by being subjected to operations incidental to the assembly either before, during, or after their assembly with other components.

Section 10.16(a), Customs Regulations (19 CFR 10.16(a)), provides that the assembly operation performed abroad may consist of any method used to join or fit together solid components, such as welding, soldering, riveting, force fitting, gluing, laminating, sewing, or the use of fasteners.

In this case, the operation which results in securely attaching the U.S. origin components to the printed circuit boards by means of soldering is considered an acceptable assembly operation. See, 19 CFR 10.16(a); HQ 555681 (September 7, 1990) (attaching U.S. origin DS2 relays to printed circuit boards by means of soldering constituted an acceptable assembly operation pursuant to 19 CFR 10.16(a)). Accordingly, the imported PCB assemblies from Mexico will be eligible for allowances in duty for the cost or value of the U.S. origin components under subheading 9802.00.80, HTSUS, upon compliance with the documentary requirements of 19 CFR 10.24.

Country or Origin Marking Requirements

The marking statute, section 304, Tariff Act of 1930, as amended (19 U.S.C. 1304), provides that, unless excepted, every article of foreign origin (or its container) imported into the U.S. shall be marked in a conspicuous place as legibly, indelibly and permanently as the nature of the article (or its container) will permit, in such a manner as to indicate to the ultimate purchaser in the U.S. the English name of the country of origin of the article. Part 134, Customs Regulations (19 CFR Part 134) implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304.

Section 134.1(b) of the interim regulations, defines "country of origin" as the country of manufacture, production, or growth of any article of foreign origin entering the U.S. 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 this part; however, for a good of a NAFTA country, the NAFTA Marking Rules will determine the country of origin. (Emphasis added).

Section 134.1(j) of the interim regulations, provides that the "NAFTA Marking Rules" are the rules promulgated for purposes of determining whether a good is a good of a NAFTA country. Section 134.1(g) of the interim regulations, defines a "good of a NAFTA country" as an article for which the country of origin is Canada, Mexico or the United States as determined under the NAFTA Marking Rules. Section 134.45(a)(2) of the interim regulations, provides that a "good of a NAFTA country" may be marked with the name of the country of origin in English, French or Spanish.

In this case, components consisting of printed circuit boards and other electronic parts are imported into Mexico to be assembled into PCB assemblies, and then exported to the U.S. to be used by Ericson in the manufacture of ground fault circuit interrupters. Thus, in order to determine the appropriate marking requirements for the PCB assemblies, imported from Mexico, we must apply the NAFTA Marking Rules.

Part 102 of the interim regulations sets forth the "NAFTA Marking Rules" for purposes of determining whether a good is a good of a NAFTA country for marking purposes. Section 102.11 of the interim regulations, sets forth the required hierarchy for determining country of origin for marking purposes. Section 102.11(a) of the interim regulations states that "[t]he country of origin of a good is the country in which:

(1) The good is wholly obtained or produced; (2) The good is produced exclusively from domestic materials; or (3) Each foreign material incorporated in that good undergoes an applicable change in tariff classification set out in section 102.20 and satisfies any other applicable requirements of that section, and all other requirements of these rules are satisfied."

"Foreign Material" is defined in section 102.1(e) of the interim regulations as "a material whose country of origin as determined under these rules is not the same country as the country in which the good is produced."

The printed circuit boards and the other electronic components that are stuffed onto the boards to make the PCB assemblies in Mexico are either of U.S., Taiwanese, Japanese or Chinese origin (foreign as defined in section 102.1(e) of the interim regulations) and are neither wholly obtained/produced nor produced exclusively from domestic materials. Therefore, paragraphs (a)(1) and (a)(2) of section 102.11 cannot be used to determine the country of origin of the PCB assembly. Thus, paragraph (a)(3) of section 102.11 is the applicable rule that next must be applied to determine the origin of the finished article. The PCB assemblies are classified under subheading 8538.90.20, HTSUS. The applicable change in tariff classification set out in section 102.20(p), Section XVI, Chapters 84 through 85, 8538 of the interim regulations provides:

8538 .... A change to heading 8538 from any other heading,

The printed circuit boards and the other electronic components (transistors, resistors, capacitors, diodes and integrated circuits) that are stuffed onto the circuit boards are all classified under headings other than heading 8538, HTSUS. Thus, the printed circuit boards and the other electronic components undergo the applicable change in tariff classification set out in section 102.20(p). Accordingly, the country of origin, for marking purposes, of the PCB assemblies imported into the U.S., from Mexico, is Mexico. Section 134.35(b), Customs Regulations (19 CFR 134.35(b)) provides as follows:

(b) Goods of a NAFTA Country. A good of a NAFTA country which is to be processed in the United States in a manner that would result in the good becoming a good of the United States under the NAFTA Marking Rules is excepted from marking. Unless the good is processed by the importer or on its behalf, the outermost container of the good shall be marked in accord with this part.

In this case, imported PCB assemblies are used by Ericson to manufacture ground fault circuit interrupters in the U.S. Thus, pursuant to section 134.35(b), in order to determine the appropriate marking requirements for the imported PCB assemblies, section 102.11 must be applied to ascertain whether the PCB assemblies become a good of the U.S. when used to make finished ground fault interrupters. Since the PCB assemblies are of Mexican origin (foreign as defined in section 102.1(e)), the finished ground fault circuit interrupters are neither wholly obtained/produced nor produced exclusively from domestic materials. Therefore, paragraphs (a)(1) and (a)(2) of section 102.11 are not applicable. Thus, paragraph (a)(3) of section 102.11 is the applicable rule that next must be applied.

The finished ground fault circuit interrupters are classified under subheading 8536.30.80, HTSUS. The applicable change in tariff classification set out in section 102.20(p), Section XVI, Chapters 84 through 85, 8536.10 - 8536.90 of the interim regulations provides:

8536.10-8536.90 .... A change to subheading 8536.10 through 8536.90 from any other subheading, including another subheading within that group.

The PCB assemblies are classified under subheading, 8538.90.20, HTSUS. Thus, the PCB assemblies undergo the applicable change in tariff classification set out in section 102.20(p). Thus, for marking purposes, the PCB assemblies become goods of the U.S. as a result of the U.S. operations performed to make the ground fault circuit interrupters. Accordingly, pursuant to section 134.35(b), the PCB assemblies imported into the U.S. are excepted from marking and the outermost containers in which the PCB assemblies are imported are also excepted from marking since Ericson (importer) is the processor of the imported PCB assemblies.

HOLDING:

Pursuant to General Note 12(t)/85.122, HTSUS, PCB assemblies which are manufactured in Mexico in the manner described above, qualify as originating goods for purposes of the duty preference under NAFTA.

The assembly operation performed in Mexico which results in securely attaching U.S. components to printed circuit boards by means of soldering, as described above, is considered an acceptable assembly operation. Accordingly, the imported PCB assemblies from Mexico will be eligible for allowances in duty for the cost or value of the U.S. components under subheading 9802.00.80, HTSUS, upon compliance with the documentary requirements of 19 CFR 10.24.

Pursuant to section 102.11(a)(3) of the interim regulations, imported PCB assemblies of Mexican origin which are used to manufactured ground fault circuit interrupters in the U.S., in the manner described above, become goods of the U.S. as a result of the U.S. operations. Accordingly, pursuant to section 134.35(b), the PCB assemblies imported from Mexico and their outermost containers are excepted from country of origin marking requirements.

A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the Customs officer handling the transaction.

Sincerely,

John Durant, Director
Commercial Rulings Division