83 FR 62328 - Notice of Issuance of Final Determination Concerning Certain Jet Fuel
DEPARTMENT OF HOMELAND SECURITY
U.S. Customs and Border Protection Federal Register Volume 83, Issue 232 (December 3, 2018)
U.S. Customs and Border Protection
Federal Register Volume 83, Issue 232 (December 3, 2018)
| Page Range | 62328-62329 | |
| FR Document | 2018-26168 |
[Federal Register Volume 83, Number 232 (Monday, December 3, 2018)] [Notices] [Pages 62328-62329] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2018-26168] ----------------------------------------------------------------------- DEPARTMENT OF HOMELAND SECURITY U.S. Customs and Border Protection Notice of Issuance of Final Determination Concerning Certain Jet Fuel 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 jet fuel. Based upon the facts presented, CBP has concluded that the country of origin of this jet fuel is India for purposes of U.S. Government procurement. DATES: The final determination was issued on November 23, 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 January 2, 2019. FOR FURTHER INFORMATION CONTACT: Teresa M. Frazier, Valuation and Special Programs Branch, Regulations and Rulings, Office of Trade (202) 325-0139. SUPPLEMENTARY INFORMATION: Notice is hereby given that on 11/23/18, 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 jet fuel, which may be offered to the U.S. Government under an undesignated government procurement contract. This final determination, HQ H272678, 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 processing in India results in a substantial transformation. Therefore, the country of origin of the jet fuel is India 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. [[Page 62329]] Dated: November 23, 2018. Alice A. Kipel, Executive Director,Regulations and Rulings, Office of Trade. H292678 November 23, 2018 OT:RR:CTF:VS H292678 TMF CATEGORY: Origin Patrick Devaney, Director ANOI, Inc. 111 W. Ocean Blvd, Suite 1590 Long Beach, CA 90802 Re: U.S. Government Procurement; Country of Origin of Jet Fuel; Title III, Trade Agreements Act of 1979 (19 U.S.C. Sec. 2511, et seq.); Subpart B, Part 177, CBP Regulations Dear Mr. Devaney: This is in response to your letter dated December 2, 2017, requesting a final determination, on behalf of your company, ANOI, Inc., concerning the country of origin of certain jet fuel 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.). ANOI, Inc., submitted an electronic ruling request to the National Commodity Specialist Division (``NCSD'') which was sent to our office. We note that Anoi 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: Anoi, Inc. produces jet fuel (identified as JP5) in India from U.S. or Mexican petroleum crude oil. The JP5 is intended to be sold to the U.S. Defense Logistics Agency (``DLA'') in a solicitation that requires compliance with the Trade Agreements Act of 1979 (``TAA''). In your submission, you state that an intermediate grade, western Texas and/or Mexican oil will be imported to the Reliance Refinery in Jamnagar, India. At the refinery, you state that ``there will be a `one-step' transformation of crude to straight-run distillate.'' The process consists of desalting and heating the crude, and then distilling out the sulfur from the middle distillate kerosene with the use of a Merox Oxidation unit that removes the sulfur from the kerosene jet fuel. DLA also requires certain additives to achieve JP5 jet fuel MILSPEC. ISSUE: What is the country of origin of the JP5 jet fuel 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, 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). A substantial transformation occurs when an article emerges from a process with a new name, character, and use different from that possessed by the article prior to processing. A substantial transformation will not result from a minor manufacturing or combining process that leaves the identity of the article intact. See United States v. Gibson-Thomsen Co., 27 C.C.P.A. 267 (1940); and National Juice Products Ass'n v. United States, 628 F. Supp. 978 (Ct. Int'l Trade 1986). You claim that the country of origin is either the United States or Mexico for two reasons. First, you state that the source of crude is ``an embargo issue for feedstock in the Solicitation.'' Second, you claim there is no ``double transformation'' as in CBP Headquarters Ruling Letters (``HQ'') 555032, dated September 23, 1988 and HQ 562387, dated July 30, 2002, because the processes in those situations involved ``old technology''/mixture-based processes that consisted of hydro-desulfurization, platformers and naptha- blends. However, in this case, ANOI, Inc. proposes to refine, by the process of distillation, and additional processes, U.S. or Mexican origin, petroleum crude oil at the Reliance Petroleum Refinery in Jamnagar, India into U.S. JP5 specification jet fuel. You state that a ``straight-run'' process occurs because it uses a Merox filter unit that involves no chemical mixing except for inclusion of the JP5 additive, which is required by DLA. Accordingly, you claim no substantial transformation occurs in India. In this case, we find the JP5 specification jet fuel is clearly a new and different article with a new name, character, and use from that of the petroleum crude oil from which it was refined. Although there may be no double substantial transformation, the process to create jet fuel from straight crude oil to straight-run distillate still involves desalting and the application of heat distillation coupled with the utilization of the Merox Oxidation unit to remove sulfur, which results in the creation of jet fuel. According to our Laboratories and Scientific Services Directorate, the petroleum crude oil is substantially transformed into JP5 by the petroleum refining process of distillation. This finding is consistent with our decision in HQ 555032, where a first substantial transformation was found to occur after distillation. Therefore, we find the country of origin of the produced JP5 will be the country in which the substantial transformation (distillation) occurs, namely India. HOLDING: Based upon the specific facts of this case, the country of origin of the JP5 jet fuel for purposes of U.S. Government procurement will be India. 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. Sincerely, Alice A. Kipel, Executive Director, Regulations & Rulings, Office of Trade. [FR Doc. 2018-26168 Filed 11-30-18; 8:45 am] BILLING CODE 9111-14-P
![62328 Federal Register / Vol. 83, No. 232 / Monday, December 3, 2018 / Notices
laminate polyurethane from [country D], circumstances and makes such DEPARTMENT OF HOMELAND
stuffing them with foam and sewing the sides determinations on a case-by-case basis. SECURITY
closed. DJO places the pneumatic coupling The Court of International Trade has also
on the fixture. DJO connects the tubing to the applied the ‘‘essence test’’ to determine U.S. Customs and Border Protection
pneumatic coupling. DJO places the aircell whether the identity of an article is changed
on the fixture to assemble the side of through assembly or processing. For
Notice of Issuance of Final
pneumatic coupling in the aircell tubing. DJO example, in Uniroyal, Inc. v. United States,
3 C.I.T. 220, 225 (1982), aff’d, 702 F.2d 1022 Determination Concerning Certain Jet
then inserts the completed aircells into the
(Fed. Cir. 1983), the court held that imported Fuel
wrap, ensuring that the tubing is exposed and
open. DJO then places the elbow and valve shoe uppers added to an outer sole in the
United States were the ‘‘very essence of the AGENCY: U.S. Customs and Border
into the pneumatic fixtures to create an Protection, Department of Homeland
assembly, which is also placed into the wrap finished shoe’’ and thus were not
and connected to the tubing. The Airlift is substantially transformed into a product of Security.
then packaged into a box along with the hand the United States. Further, the court noted ACTION: Notice of final determination.
that the attachment of the outsole to the
bulb and instructional information, which is
upper was a minor manufacturing or SUMMARY: This document provides
labeled for shipping.
combining process which left the identity of
You state that the Airlift is classified under the upper intact.
notice that U.S. Customs and Border
subheading 9021.10.00, Harmonized Tariff Here, the manufacturing operations that Protection (‘‘CBP’’) has issued a final
Schedule of the United States (‘‘HTSUS’’), combine the Airlift into a finished product determination concerning the country of
which provides for ‘‘Orthopedic appliances, are completed at DJO’s facility in Mexico and origin of certain jet fuel. Based upon the
including crutches, surgical belts and trusses; cause the various parts to lose their facts presented, CBP has concluded that
splints and other fracture appliances; individual identities. In Mexico, DJO creates the country of origin of this jet fuel is
artificial parts of the body; hearing aids and the tubing used to inflate the aircell, cuts the
other appliances which are worn or carried,
India for purposes of U.S. Government
laminate polyurethane to size and shape for
or implanted in the body, to compensate for procurement.
the aircell, fills the aircell with foam, and
a defect or disability; parts and accessories sews it closed. DJO then connects the tubing DATES: The final determination was
thereof; Orthopedic or fracture appliances, into the aircell using a coupler and plastic issued on November 23, 2018. A copy
and parts and accessories thereof.’’ elbow, after which the aircell is sewn into the of the final determination is attached.
Airlift. This processing permanently attaches Any party-at-interest, as defined in 19
ISSUE:
the various parts to each other so that they CFR 177.22(d), may seek judicial review
What is the country of origin of the Airlift lose their individual identities and become
for purposes of U.S. Government part of the completed Airlift. of this final determination within
Procurement? Further, similar to the shoe upper in January 2, 2019.
Uniroyal, the aircell imparts the essence of FOR FURTHER INFORMATION CONTACT:
LAW AND ANALYSIS:
the brace as it is the part that provides arch Teresa M. Frazier, Valuation and
CBP issues country of origin advisory support to prevent or reduce adult onset flat
rulings and final determinations as to
Special Programs Branch, Regulations
foot, and supports the ankle to treat PTTD.
whether an article is or would be a product While the form assembly is imported with and Rulings, Office of Trade (202) 325–
of a designated country or instrumentality for lateral stays that work to immobilize the 0139.
the purposes of granting waivers of certain ankle, it is not until the insertion of the SUPPLEMENTARY INFORMATION: Notice is
‘‘Buy American’’ restrictions in U.S. law or aircell that the Airlift is suitable for treatment hereby given that on 11/23/18, pursuant
practice for products offered for sale to the of these conditions. Therefore, a customer is to subpart B of Part 177, U.S. Customs
U.S. Government, pursuant to subpart B of likely to make the decision to purchase the
Airlift based on the function of the aircell.
and Border Protection Regulations (19
Part 177, 19 C.F.R. § 177.21 et seq., which
implements Title III of the Trade Agreements As such, we find the manufacture of the CFR part 177, subpart B), CBP issued a
Act of 1979, as amended (19 U.S.C. § 2511 et aircell in Mexico and additional processing final determination concerning the
seq.). to create a fully functioning brace results in country of origin of certain jet fuel,
Under the rule of origin set forth under 19 a substantial transformation of the which may be offered to the U.S.
U.S.C. § 2518(4)(B): components such that the country of origin Government under an undesignated
An article is a product of a country or for government procurement purposes is government procurement contract. This
instrumentality only if (i) it is wholly the Mexico. final determination, HQ H272678, was
growth, product, or manufacture of that HOLDING: issued under procedures set forth at 19
country or instrumentality, or (ii) in the case The country of origin of the Airlift for CFR part 177, subpart B, which
of an article which consists in whole or in purposes of U.S. Government procurement is implements Title III of the Trade
part of materials from another country or Mexico. Agreements Act of 1979, as amended
instrumentality, it has been substantially Notice of this final determination will be
transformed into a new and different article (19 U.S.C. 2511–18). In the final
given in the Federal Register, as required by determination, CBP concluded that the
of commerce with a name, character, or use 19 C.F.R. § 177.29. Any party-at-interest other
distinct from that of the article or articles processing in India results in a
than the party which requested this final
from which it was so transformed. determination may request, pursuant to 19
substantial transformation. Therefore,
See also 19 C.F.R. § 177.22(a). C.F.R. §177.31, that CBP reexamine the the country of origin of the jet fuel is
In determining whether the combining of matter anew and issue a new final India for purposes of U.S. Government
parts constitutes a substantial transformation, determination. Pursuant to 19 CFR 177.30, procurement. Section 177.29, CBP
the determinative issue for CBP is the extent any party-at-interest may, within 30 days of Regulations (19 CFR 177.29), provides
of operations performed and whether the publication of the Federal Register Notice that a notice of final determination shall
parts lose their identity and become an referenced above, seek judicial review of this be published in the Federal Register
integral part of the new article. Belcrest final determination before the Court of within 60 days of the date the final
khammond on DSK30JT082PROD with NOTICES
Linens v. United States, 6 C.I.T. 204 (1983), International Trade.
determination is issued. Section 177.30,
aff’d, 741 F.2d 1368 (Fed. Cir. 1984). Sincerely, CBP Regulations (19 CFR 177.30),
Assembly operations that are minimal or Alice A. Kipel,
simple, as opposed to complex or provides that any party-at-interest, as
Executive Director Regulations & Rulings defined in 19 CFR 177.22(d), may seek
meaningful, will generally not result in a Office of Trade judicial review of a final determination
substantial transformation. See Headquarters
Ruling Letter (‘‘HQ’’) H125975, dated January [FR Doc. 2018–26167 Filed 11–30–18; 8:45 am] within 30 days of publication of such
19, 2011. CBP considers the totality of the BILLING CODE 9111–14–P determination in the Federal Register.
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![Federal Register / Vol. 83, No. 232 / Monday, December 3, 2018 / Notices 62329
Dated: November 23, 2018. An article is a product of a country or Notice of this final determination will be
Alice A. Kipel, instrumentality only if (i) it is wholly the given in the Federal Register, as required by
growth, product, or manufacture of that 19 C.F.R. § 177.29. Any party-at-interest other
Executive Director,Regulations and Rulings,
country or instrumentality, or (ii) in the case than the party which requested this final
Office of Trade.
of an article which consists in whole or in determination may request, pursuant to 19
H292678 part of materials from another country or C.F.R. § 177.31, that CBP reexamine the
November 23, 2018 instrumentality, it has been substantially matter anew and issue a new final
OT:RR:CTF:VS H292678 TMF transformed into a new and different article determination. Pursuant to 19 C.F.R.
CATEGORY: Origin of commerce with a name, character, or use § 177.30, any party-at-interest may, within 30
distinct from that of the article or articles days of publication of the Federal Register
Patrick Devaney, Director from which it was so transformed.
ANOI, Inc. Notice referenced above, seek judicial review
111 W. Ocean Blvd, Suite 1590 See also 19 C.F.R. § 177.22(a). of this final determination before the Court
Long Beach, CA 90802 A substantial transformation occurs when of International Trade.
Re: U.S. Government Procurement; Country an article emerges from a process with a new Sincerely,
of Origin of Jet Fuel; Title III, Trade name, character, and use different from that
Alice A. Kipel,
Agreements Act of 1979 (19 U.S.C. § 2511, possessed by the article prior to processing.
A substantial transformation will not result Executive Director, Regulations & Rulings,
et seq.); Subpart B, Part 177, CBP Office of Trade.
from a minor manufacturing or combining
Regulations
process that leaves the identity of the article [FR Doc. 2018–26168 Filed 11–30–18; 8:45 am]
Dear Mr. Devaney:
intact. See United States v. Gibson-Thomsen BILLING CODE 9111–14–P
This is in response to your letter dated Co., 27 C.C.P.A. 267 (1940); and National
December 2, 2017, requesting a final Juice Products Ass’n v. United States, 628 F.
determination, on behalf of your company, Supp. 978 (Ct. Int’l Trade 1986).
ANOI, Inc., concerning the country of origin DEPARTMENT OF HOMELAND
You claim that the country of origin is
of certain jet fuel pursuant to subpart B of either the United States or Mexico for two SECURITY
Part 177 of the U.S. Customs and Border reasons. First, you state that the source of
Protection (‘‘CBP’’) Regulations (19 C.F.R. crude is ‘‘an embargo issue for feedstock in Federal Emergency Management
§ 177.21 et seq.). ANOI, Inc., submitted an the Solicitation.’’ Second, you claim there is Agency
electronic ruling request to the National no ‘‘double transformation’’ as in CBP
Commodity Specialist Division (‘‘NCSD’’) Headquarters Ruling Letters (‘‘HQ’’) 555032, [Internal Agency Docket No. FEMA–3407–
which was sent to our office. dated September 23, 1988 and HQ 562387, EM; Docket ID FEMA–2018–0001]
We note that Anoi is a party-at-interest dated July 30, 2002, because the processes in
within the meaning of 19 C.F.R. those situations involved ‘‘old technology’’/
§ 177.22(d)(1) and is entitled to request this
Alabama; Amendment No. 1 to Notice
mixture-based processes that consisted of
final determination. hydro-desulfurization, platformers and
of an Emergency Declaration
FACTS: naptha-blends. However, in this case, ANOI, AGENCY: Federal Emergency
Inc. proposes to refine, by the process of
Anoi, Inc. produces jet fuel (identified as distillation, and additional processes, U.S. or Management Agency, DHS.
JP5) in India from U.S. or Mexican petroleum Mexican origin, petroleum crude oil at the ACTION: Notice.
crude oil. The JP5 is intended to be sold to Reliance Petroleum Refinery in Jamnagar,
the U.S. Defense Logistics Agency (‘‘DLA’’) in India into U.S. JP5 specification jet fuel. You SUMMARY: This notice amends the notice
a solicitation that requires compliance with state that a ‘‘straight-run’’ process occurs of an emergency declaration for the
the Trade Agreements Act of 1979 (‘‘TAA’’). because it uses a Merox filter unit that State of Alabama (FEMA–3407–EM),
In your submission, you state that an involves no chemical mixing except for
intermediate grade, western Texas and/or dated October 12, 2018, and related
inclusion of the JP5 additive, which is
Mexican oil will be imported to the Reliance required by DLA. Accordingly, you claim no determinations.
Refinery in Jamnagar, India. At the refinery, substantial transformation occurs in India. DATES: This amendment was issued
you state that ‘‘there will be a ‘one-step’ In this case, we find the JP5 specification November 7, 2018.
transformation of crude to straight-run jet fuel is clearly a new and different article
distillate.’’ The process consists of desalting with a new name, character, and use from FOR FURTHER INFORMATION CONTACT:
and heating the crude, and then distilling out that of the petroleum crude oil from which Dean Webster, Office of Response and
the sulfur from the middle distillate kerosene it was refined. Although there may be no Recovery, Federal Emergency
with the use of a Merox Oxidation unit that double substantial transformation, the Management Agency, 500 C Street SW,
removes the sulfur from the kerosene jet fuel. process to create jet fuel from straight crude Washington, DC 20472, (202) 646–2833.
DLA also requires certain additives to oil to straight-run distillate still involves
achieve JP5 jet fuel MILSPEC. desalting and the application of heat SUPPLEMENTARY INFORMATION: Notice is
distillation coupled with the utilization of hereby given that the incident period for
ISSUE: the Merox Oxidation unit to remove sulfur, this emergency is closed effective
What is the country of origin of the JP5 jet which results in the creation of jet fuel. October 13, 2018.
fuel for purposes of U.S. Government According to our Laboratories and Scientific
procurement? Services Directorate, the petroleum crude oil The following Catalog of Federal Domestic
is substantially transformed into JP5 by the Assistance Numbers (CFDA) are to be used
LAW AND ANALYSIS: for reporting and drawing funds: 97.030,
petroleum refining process of distillation.
CBP issues country of origin advisory This finding is consistent with our decision Community Disaster Loans; 97.031, Cora
rulings and final determinations as to in HQ 555032, where a first substantial Brown Fund; 97.032, Crisis Counseling;
whether an article is or would be a product transformation was found to occur after 97.033, Disaster Legal Services; 97.034,
of a designated country or instrumentality for distillation. Therefore, we find the country of Disaster Unemployment Assistance (DUA);
the purposes of granting waivers of certain origin of the produced JP5 will be the 97.046, Fire Management Assistance Grant;
‘‘Buy American’’ restrictions in U.S. law or country in which the substantial 97.048, Disaster Housing Assistance to
khammond on DSK30JT082PROD with NOTICES
practice for products offered for sale to the transformation (distillation) occurs, namely Individuals and Households In Presidentially
U.S. Government, pursuant to subpart B of India. Declared Disaster Areas; 97.049,
Part 177, 19 C.F.R. § 177.21 et seq., which Presidentially Declared Disaster Assistance—
implements Title III of the Trade Agreements HOLDING: Disaster Housing Operations for Individuals
Act of 1979, as amended (19 U.S.C. § 2511 et Based upon the specific facts of this case, and Households; 97.050, Presidentially
seq.). the country of origin of the JP5 jet fuel for Declared Disaster Assistance to Individuals
Under the rule of origin set forth under 19 purposes of U.S. Government procurement and Households—Other Needs; 97.036,
U.S.C. § 2518(4)(B): will be India. Disaster Grants—Public Assistance
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Document Created: 2018-12-01 00:57:11
Document Modified: 2018-12-01 00:57:11
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Notices | |
| Action | Notice of final determination. | |
| Dates | The final determination was issued on November 23, 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 January 2, 2019. | |
| Contact | Teresa M. Frazier, Valuation and Special Programs Branch, Regulations and Rulings, Office of Trade (202) 325-0139. | |
| FR Citation | 83 FR 62328 |
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