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Meets Annex 401 Origin Criterion

Article 401(b) indicates that goods may "originate" in Canada, Mexico or the United States, even if they contain non-originating materials, if the materials satisfy the rule of origin specified in Annex 401 of the Agreement. The Annex 401 rules of origin are commonly referred to as specific rules of origin and are based on a change in tariff classification, a regional value-content requirement or both. Annex 401 is organized by Harmonized Tariff Schedule (HTS) number, so one must know the HTS number of a good, and the HTS numbers of all the non-NAFTA materials used to produce the good, to find its specific rule of origin and determine if the rule has been met. Annex 401 gives the applicable rule of origin opposite the HTS number. For up-to-date Annex 401 information, refer to the specific Rules of Origin found in General Note 12 (t) of the Harmonized Tariff Schedule (US), D Memorandum 11-5-2 and any Customs Notices (CA) and the Diario Oficial dated March 27, 1996 and the Decree promulgating the modifications of NAFTA's Annex 401 published in the Diario Oficial dated March 27, 1996 (MX).

Tariff Change

When a rule of origin is based on a change in tariff classification, each of the non-originating materials used in the production of the goods must undergo the applicable change as a result of production occurring entirely in the NAFTA region. This means that the non-originating materials are classified under one tariff provision prior to processing and classified under another upon completion of processing. The specific rule of origin in Annex 401 defines exactly what change in tariff classification must occur for the goods to be considered "originating." (Please see the section on "de minimis" in Chapter 3 of this Guide.)

Frozen pork meat (HTS 02.03) is imported into the United States from Hungary and combined with spices imported from the Caribbean (HTS 09.07-9.10) and cereals grown and produced in the U.S. to make pork sausage (HTS 16.01). The Annex 401 rule of origin for HTS 16.01 states:

A change to heading 16.01 through 16.05 from any other chapter.

Since the imported frozen meat is classified in Chapter 2 and the spices are classified in Chapter 9, these non-originating materials meet the required tariff change. One does not consider whether the cereal meets the applicable tariff change since it is originating--only non-originating materials must undergo the tariff change.

Regional Value Content

Some Annex 401 specific rules of origin require that a good have a minimum regional value content, meaning that a certain percentage of the value of the goods must be from North America. Article 402 gives two formulas for calculating the regional value content. In general, the exporter or producer may choose between these two formulas: the "transaction value" method or the "net cost" method. Having two methods gives producers more than one way of demonstrating that the rule of origin has been satisfied. The transaction value method is generally simpler to use but a producer may choose whichever method is most advantageous.

The transaction value method calculates the value of the non-originating materials as a percentage of the GATT transaction value of the good, which is the total price paid for the good, with certain adjustments for packing and other items, and is based on principles of the GATT Customs Valuation Code. The essence of this method is that the value of non-originating materials can be calculated as a percentage of the invoice price which is usually the price actually paid for them. Because the transaction value method permits the producer to count all of its costs and profit as territorial, the required percentage of regional value content under this method is higher than under the net cost method.

However, there are a number of situations where the transaction value method cannot be used and the net cost method is the only alternative. The net cost method must be used when there is no transaction value, in some related party transactions, for certain motor vehicles and parts, when a producer is accumulating regional value content (see Chapter 3 for a discussion of accumulation), as well as to determine the regional value content for designated intermediate materials (see Chapter 3). The producer may also revert to the net cost method if the result using the transaction value method is unfavorable.

The formula for calculating the regional value content using the transaction value method is:

RVC = TV -- VNM x 100
TV where
RVC is the regional value content, expressed as a percentage;
TV is the transaction value of the good adjusted to an F.O.B. basis; and
VNM is the value of non-originating materials used by the producer in the production of the good.

The net cost method calculates the regional value content as a percentage of the net cost to produce the good. Net cost represents all of the costs incurred by the producer minus expenses for sales promotion (including marketing and after-sales service), royalties, shipping and packing costs and non-allowable interest costs. The percentage content required for the net cost method is lower that the percentage content required under the transaction value method because of the exclusion of certain costs from the net cost calculation. 

An electric hair curling iron (HTS 8516.32) is made in Mexico from Japanese hair curler parts (HTS 8516.90). Each hair curling iron is sold for US$4.40; the value of the non-originating hair curler parts is US$1.80. The Annex 401 rule of origin for HTS 8516.32 states:
A change to subheading 8516.32 from subheading 8516.80 or any other heading; or
A change to subheading 8516.32 from subheading 8516.90, whether or not there is also a change from subheading 8516.80 or any other heading, provided there is a regional value content of not less than: (a) 60 percent where the transaction value method is used, or (b) 50 percent where the net cost method is used.

The first of these two rules is not met since there is no heading change, therefore the producer must verify if the curling irons can qualify under the second rule. In the second rule the required subheading change is met (from HTS 8516.90 to 8516.32) so one proceeds to calculate the regional value content. The regional value content under the transaction value method is:

(4.40 -- 1.80) x 100 = 59.1%
4.40

The hair curler is not considered an originating good under this method, since the required regional value content is 60 percent where the transaction value is used.

The formula for calculating the regional value content using the net cost method is:

RVC = NC -- VNM x 100
NC where
RVC is the regional value content, expressed as a percentage;
NC is the net cost of the good; and
VNM is the value of non-originating materials used by the producer in the production of the good.

Instead, the producer uses the net cost method. The total cost to produce the hair curler is US$3.90, which includes US$0.25 for shipping and packing costs. There are no costs for royalties, sales promotion or non-allowable interest. The net cost is therefore US$3.65. The regional value content under the net cost method is:

(3.65-- 1.80) x 100 = 50.7%
3.65

The hair curler would be considered originating, since the required regional value content is 50 percent where the net cost method is used.

Last modified: 
May 28, 2014
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