CLA-2 CO:R:C:V 555189 BJO

District Director of Customs
Philadelphia, Pennsylvania 19106

RE: Request for Internal Advice Regarding GSP Eligibility of Umbrellas Imported from the Philippines

Dear Sir:

This is in response to your memorandum of November 22, 1988 (MAN-1-DD:CO:MMcG), forwarding the internal advice request submitted by John M. Peterson, Esq. on behalf of Totes, Incorporated ("importer"). Mr. Peterson asks that you seek our advice concerning the eligibility under the Generalized System of Preferences (GSP)(19 U.S.C. 2461-2465) of certain umbrellas imported from the Philippines.

FACTS:

The importer states that it is currently importing hand- held, self-folding, collapsible umbrellas with a telescopic shaft, which are manufactured in the Philippines from Philippine and Taiwanese components. The materials imported into the Philippines and used in the production of the umbrellas are: collapsible metal umbrella frames, waterproof nylon fabric in continuous lengths, printed hang tags, and PVC plastic umbrella cases. The remaining umbrella parts and packing materials -cotton thread, sewing labels, snap buttons, elastic bands, rugby, packing cartons, packing tape, packing strap, and packing clips- are purchased from Philippine manufacturers.

According to the importer, production of the umbrellas in the Philippines involves two steps: first, manufacture of the umbrella top, and second, joining the umbrella top with other components to form the completed umbrella. In the first step, the Philippine umbrella manufacturer inspects and edge folds the continuous length nylon fabric imported from Taiwan. The fabric is cut into three pieces of equal width, which are hemmed on both sides. Triangular panels are cut with a gore from the cut lengths of nylon. The sides of each triangular panel are cut to give each a slightly curved shape. Eight such triangular top panels are then sewn together. A piece of top cloth is cut from

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the nylon fabric, pressed, and inserted under the center of the umbrella top. The small hole cut at the center of the umbrella top is reinforced by round stitching. A tie measuring approximately 6 1/2 inches long is cut and sewn from the same nylon fabric, and is sewn to the umbrella top, and velcro material or snaps are attached to the opposite ends of the tie. At this point in the process, the umbrella top is complete.

In the second step, the completed umbrella top is attached to the frame by "tacking, tipping, and tethering" operations. This process involves (1) threading fabric through apertures at the end of each of the umbrella frame's spokes and stitching thereto, (2) joining one point on each spoke to the umbrella top by threading a small fabric loop through a frame aperture and sewing it to the underside of the umbrella top, and (3) joining another point on each spoke to a frame aperture, with a large, elastic loop sewn to the underside of the umbrella top. The top is sewn or otherwise affixed to the umbrella frame at 24 separate points. A plastic ferrule is then inserted through the opening in the umbrella top and snapped or screwed onto the frame, joining the umbrella top and frame. Handles are assembled on the frame, and, where necessary, key springs are aligned with the shaft. The umbrella is then furled, inspected, and packed for shipment.

The importer claims that if the umbrella tops are found to be products of the Philippines, then the Philippine content of the finished umbrella is equivalent to 36.2% of the umbrella's dutiable transaction value. However, if the umbrella tops are found not to be products of the Philippines, then the cost of Philippine materials and processing operations would be equivalent to 22.3% of the entered value of the umbrellas. The umbrellas have been entered under subheading 6601.91.00 of the Harmonized Tariff Schedules of the United States ("HTSUS").

ISSUE:

Whether umbrella tops, which are manufactured in the Philippines from continuous lengths of nylon fabric imported from Taiwan, and joined with other components to form finished umbrellas, are substantially transformed constituent materials for purposes of the GSP.

LAW AND ANALYSIS:

Under the GSP, eligible products of a designated beneficiary developing country (BDC) which are imported directly into the

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U.S. qualify for duty-free treatment if the cost or value of the constituent materials produced in the BDC plus the direct costs of processing the eligible article in the BDC is equivalent to at least 35 percent of the article's appraised value. See 19 U.S.C. 2463.

The Philippines is a designated beneficiary developing country for GSP purposes, and umbrellas classified under subheading 6601.91.00 of the HTSUS are GSP-eligible articles. Accordingly, the articles may be entered without payment of duty if the sum of the cost of materials produced in the Philippines plus the direct costs of the Philippine processing operation is not less than 35 percent of the value of the umbrella at the time of entry into the U.S.

The cost or value of materials which are imported into the BDC and used in the production of the GSP-eligible article, as in this case, may be included in the 35 percent value-content computation only if the imported materials undergo a double substantial transformation. That is, the waterproof nylon fabric imported into the Philippines in continuous lengths must be substantially transformed in the Philippines into a new and different intermediate article of commerce, which is then used in the production of the final imported article, the umbrella. See 19 CFR 10.177(a).

A substantial transformation occurs when an article emerges from a process with a new name, character, or use different from that possessed by the article prior to processing. See Texas Instruments, Inc. v. United States, 69 CCPA 152, 681 F.2d 778 (1982).

The importer claims that the cutting of the nylon fabric and/or the assembly thereof into umbrella tops results in a substantial transformation of the Taiwanese-origin fabric into new articles of commerce of Philippine origin, and that the manufacture of the umbrella tops into a finished collapsible umbrella constitutes the requisite second substantial transformation.

In support of its claim that the imported fabric is substantially transformed by cutting, or by cutting and assembly into umbrella tops, the importer cites a number of rulings which generally hold that the cutting of fabric of undefined shape into specific patterns or shapes substantially transforms the fabric into a new and different article of commerce. See HQ 055591,

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dated August 22, 1978; HQ 055680, dated June 18, 1979; HQ 055694, dated August 15, 1979; HQ 067823, dated June 2, 1982; HQ 554025, dated December 16, 1986; and HQ 554027, dated January 13, 1987. The importer also cites section 12.130(e) of the Customs Regulations (19 CFR 12.130(e)) (Textile and textile products country of origin)("An article or material usually will be a product of a particular foreign territory or country...when it has undergone prior to importation into the U.S. in that foreign territory or country...cutting of fabric into parts and assembly of those parts into the completed article; or substantial assembly by sewing and or tailoring of all cut pieces of apparel articles which have been cut from fabric in another foreign territory or country...into a completed garment.")

In support of its claim that the assembly of the umbrella top into the finished umbrella constitutes a second substantial transformation, the importer claims that the completed umbrella has a name, character, and use different from its constituent materials, is separately classified for tariff purposes, and is a consumer good, while the umbrella top is a producer good.

We believe that the importer's arguments have merit. We have consistently held that the cutting of fabric imported in continuous lengths into specific pattern and shapes constitutes a substantial transformation, as the importer claims, and we find that this principle applies to the facts in this case. We further find that the assembly of the umbrella from the umbrella top and other imported components in the described tacking, tipping and tethering operations constitutes a second substantial transformation. As the importer observes, the finished umbrella is a new and different article of commerce with a name, character, and use different from its component parts.

In light of the foregoing, we find that the umbrella tops are substantially transformed constituent materials for purposes of the GSP, and therefore their cost or value may be counted toward the 35 percent value-content requirement. Your forwarding memorandum states that you do not believe that the cost data supplied by the importer is sufficient to support the conclusion that the 35 percent value-content requirement will be met. Pursuant to 19 CFR 10.172, a claim for exemption from duty under the GSP may be denied by the district director if he is not satisfied that the country of origin criteria and other regulatory requirements have been met. Accordingly, you may deny the importer's claim for exemption on that basis, or require presentation of additional evidence verifying the importer's cost data.

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CONCLUSION:

Umbrella tops produced in the Philippines from imported continuous lengths of nylon fabric and assembled into umbrellas are substantially transformed constituent materials of the umbrellas for purposes of the GSP where the imported fabric is cut into panels and sewn together to form umbrella tops, which are then joined with an umbrella frame and other components to form the completed umbrellas in the above described operations. However, your office may deny the importer's claim for exemption from duty under the GSP, or may require presentation of additional verifying evidence, if you are not satisfied that the cost data presented to support the claim is sufficient.

Sincerely,

John Durant, Director
Commercial Rulings Division