NY D87548 - COUNTRY OF ORIGIN MARKING OF IMPORTED RF POWER TRANSISTORS; ARTICLE 509 - United States International Trade Commision Rulings

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March 2, 1999

MAR-2 RR:NC:MM:109 D87548

CATEGORY: MARKING

Mr. William Chadwick
Quality Manager
Microsemi RF Products
140 Commerce Drive
Montgomeryville, PA 18936-1013

RE: COUNTRY OF ORIGIN MARKING OF IMPORTED RF POWER TRANSISTORS; ARTICLE 509

Dear Mr. Chadwick:

This is in response to your letter dated January 26, 1999, requesting a ruling on the country of origin marking requirements for imported High Frequency RF Power Transistors which are assembled from U.S. components in a NAFTA country. A marked sample was not submitted with your letter for review. You have inquired as to whether the transistors must be marked Made in Mexico. You indicate that the individual transistor is to small to mark individually with the country of origin.

Your letter indicates that the RF Power Transistors will be assembled in Tijuana, Mexico from U.S. components. Microsemi RF Products, Montgomeryville, PA kits the material (transistor die, package (header), lid, bonding wire) required to assemble the transistors and sends the kits to Mexico for assembly. After assembly the transistors are returned to the United States for final testing before being shipped to the customer. In a telephone conversation with you on March 1, 1999, you indicated that the finished transistors are approximately 4/10" square. The dissipation rate of these devices is greater than one watt, and they vary from 30MHz to 2.5GHz. They will be packaged on cardboard cards or trays for delivery to your customers. These cards and trays are packed in shipping cartons.

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.

The country of origin marking requirements for a "good of a NAFTA country" are also determined in accordance with Annex 311 of the North American Free Trade Agreement ("NAFTA"), as implemented by section 207 of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat 2057) (December 8, 1993) and the appropriate Customs Regulations. The Marking Rules used for determining whether a good is a good of a NAFTA country are contained in Part 102, Customs Regulations. The marking requirements of these goods are set forth in Part 134, Customs Regulations.

Section 134.45(a)(2) of the 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. Section 134.1(g) of the 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.

The rules for determining when, for marking purposes, the country of origin of an imported good is one of the parties to "NAFTA" are set forth in Part 102, Customs Regulations. Section 102.11 of the regulations, sets forth the required hierarchy for determining country of origin for marking purposes. Section 102.11(a), Customs Regulations, states that the country of origin of a good is the country in which:

(1) [t]he good is wholly obtained or produced; (2) [t]he good is produced exclusively from domestic materials; or (3) [e]ach 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 applicable requirements of these rules are satisfied.

Foreign material is defined in section 102.1(e), Customs 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. Sections 102.11(a)(1) and 102.11(a)(2) do not apply to the facts presented in this case because the transistors are assembled in Mexico from U.S. materials, and therefore they are neither wholly obtained or produced, nor produced exclusively from domestic materials as those terms are defined under section 102.1, Customs Regulations. Accordingly, section 102.11(a)(3), Customs Regulations, is the applicable rule that must be applied to determine the origin of the transistors. Pursuant to section 102.11(a)(3), the country of origin of a good is the country in which each foreign material incorporated in that good undergoes an applicable change in tariff classification set out in section 102.20, Customs Regulations. The applicable part of the change in tariff classification rule set out in section 102.20(o), Customs Regulations, is:

8541 ? 8542 .... A change to heading 8541 through 8542 from any other subheading, including another subheading within that group; or

.... A change to a mounted chip, die or wafer classified in heading 8541 or 8542 from an unmounted chip, die or wafer classified in heading 8541 or 8542....

The finished transistors are classified in subheading 8541.29. They change to a mounted die from an unmounted die. The header and lid are classified in subheading 8541.90, and the bonding wire in subheading 7108.13. Therefore, the applicable rule has been met. Consequently, the country of origin for these transistors is Mexico.

An article is excepted from marking under 19 U.S.C. 1304 (a)(3)(D) and section 134.32(d), Customs Regulations (19 CFR 134.32(d)), if the marking of a container of such article will reasonably indicate the origin of such article. T.D. 75-187 addresses the country of origin marking requirements for semiconductors. In T.D. 75?187, Customs stated that semiconductor devices are excepted from individual marking if their containers are properly marked and Customs officials at the port of entry are satisfied that the devices will reach the ultimate purchaser in the marked containers. In T.D. 75?187, it was stated that the ultimate purchaser of the devices, within the meaning of 19 U.S.C. 1304(a), may be a manufacturer who uses the devices in the manufacture of new and different articles such as television sets, radios, or other electronic equipment, or a hobbyist, experimenter, or repairman who purchases the devices in their original imported condition for use in his hobby or profession. Accordingly, where a manufacturer uses the devices to produce other products, if the devices reach the manufacturer in a properly marked container, the requirements of 19 U.S.C. 1304 will be satisfied.

In this case, and assuming that the Customs officials at the port of entry are satisfied that the devices will reach the ultimate purchaser in the marked containers, the devices may be excepted from marking and only the outer containers (cards, trays, cartons) in which the devices are packed must be marked with the country of origin of the devices. This ruling is being issued under the provisions of Part 181 of the Customs Regulations (19 CFR Part 181).

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Eileen S. Kaplan at 212-637-7048.

Sincerely,

Robert B. Swierupski
Director,

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