CLA-2 CO:R:C:S 556214 LS

Andrew P. Vance, Esq.
Barnes, Richardson & Colburn
475 Park Avenue South
New York, N.Y. 10016

RE: Men's golf shirt and sports pullover created by marking, cutting, sewing, ironing, and packing; General Note 3(a)(iv), HTSUS; insular possession; substantial transformation; 067823; 555189; C.S.D. 85-25; Torrington; Texas Instruments; 19 CFR 12.130(e)(iv)

Dear Mr. Vance:

This is in response to your letters dated August 21, 1991, and October 3, 1991, requesting a ruling, on behalf of Luen Thai, concerning the eligibility for duty-free treatment under General Note 3(a)(iv), Harmonized Tariff Schedule of the United States (HTSUS), of a men's "La Mode" golf shirt and "Sport" pullover imported from the Northern Mariana Islands. Samples of the two garments were submitted.

FACTS:

This ruling will address the two aforementioned garments described in your letter of October 3, 1991, rather than the T-shirt and pullover described in your letter of August 21, 1991, since you were able to provide samples and manufacturing data only on the former two items.

The men's "La Mode" golf shirt, which is made of knit fabric consisting of 60% cotton and 40% polyester, has the following features: a double stitched, interlined, shirt-type collar; short sleeves which are double stitched and self-hemmed; a self- hemmed bottom; a pocket on the chest; a double interlined front placket with four buttons; and side vents.

The men's "Sport" pullover, which is made of a multi-colored striped 100% cotton knit fabric, has the following features: stitched crew neck made of ribbed fabric; a neckband and sweatpatch below the crew neck; long sleeves with ribbed cuffs; a self-hemmed bottom; side vents with banding; and an embroidered logo on the chest.

Luen Thai plans to import foreign fabric into the Northern Mariana Islands to make both the pullover and golf shirt. The fabric will be imported in unmarked bolts, and marked and cut into component parts of various shapes and sizes, to be described in more detail below. In the process of being assembled together, the cut pieces undergo numerous sewing operations, including hemming, serging, top stitching, and cover stitching. The pullover is embroidered with a logo and pigment washed. Both garments undergo inspection, trimming, pressing, folding and packaging operations before being imported directly into the U.S.

The golf shirt is made from approximately 13 pieces of fabric and six pieces of interlining, all cut from unmarked bolts of fabric. Various other accessory items, such as buttons, thread, and labels are also of foreign origin and imported into the Northern Mariana Islands.

The pullover is made from approximately 11 pieces of fabric. The front and back panels, the sleeve panels, and the sweatpatch are cut from the bolts of knit fabric, whereas the ribbed collar and ribbed cuffs are cut from bolts of ribbed material. The neckband and the banding on the side vents are cut from another type of fabric. Various other accessory items, such as the embroidery thread and the labels, are also of foreign origin and imported into the Northern Mariana Islands.

You state that your client, Luen Thai, is presently able to produce the garments from less expensive foreign fabric, thus ensuring that manufacturing costs in the Northern Mariana Islands are always 50% or more of the total value of the garments. Because your client is considering the purchase of much more expensive foreign fabric, you are requesting that we specifically address the question of whether the fabric undergoes a double substantial transformation in the production of these garments in the insular possession. You state that an affirmative decision on this issue would allow you to include the cost or value of the more expensive foreign fabric in the value of material produced in the insular possession for purposes of the 50% foreign value limitation set forth in General Note 3(a)(iv), HTSUS. You contend that the fabric imported on bolts undergoes the first substantial transformation when it is marked and cut into panels which possess definite sizes and shapes. You state that a second substantial transformation occurs in the process of sewing the fabric panels and cut pieces into the finished shirt and pullover. To support your contention of a second substantial transformation, you state that these panels are distinct articles of commerce which are ready to be put into the stream of commerce where they can be sold and transferred to other manufacturers.

You have also asked us to confirm that, provided we find these garments to be products of the Northern Mariana Islands, they will not be subject to quota or visa requirements.

ISSUE:

Whether the men's golf shirt and pullover will be entitled to duty-free treatment under General Note 3(a)(iv), HTSUS, when imported into the U.S.

LAW AND ANALYSIS:

Under General Note 3(a)(iv), HTSUS, goods imported from a U.S. insular possession may enter the customs territory of the U.S. free of duty if they:

(1) are the growth or product of the possession;

(2) do not contain foreign materials which represent more than 70% of the goods' total value (or more than 50% with respect to textile and apparel articles subject to textile agreements, and other goods described in section 213(b) of the Caribbean Basin Econonmic Recovery Act) (CBERA); and

(3) come directly to the customs territory of the U.S. from the possession.

Commencing on July 18, 1947, the U.S. became the administering authority of the Trust Territory of the Pacific Islands (TTPI), an area including the Northern Mariana Islands (Trusteeship Agreement, 61 Stat. 3301, T.I.A.S. No. 1665, 8 U.N.T.S. 89). In accordance with provisions of the trust agreement to promote self-government for the peoples of the trust territory, on March 24, 1976, the U.S. signed a Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the U.S., Pub. L. 94-241, 90 Stat. 263. That covenant became fully effective as of November 4, 1986, and replaced the trusteeship agreement (See Presidential Proclamation 5564 of November 3, 1986 and E.O. 1272 of November 3, 1986).

Article 6 of the Covenant, section 603(c), provides that "imports from the Northern Mariana Islands into the customs territory of the United States will be subject to the same treatment as imports from Guam into the customs territory of the United States." See also C.S.D. 83-51, 17 Cust. Bull. 825 (1983). Therefore, products from the Northern Mariana Islands are eligible for duty-free treatment under General Note 3(a)(iv), HTSUS.

Since men's knit shirts and pullovers are subject to textile agreements, and are not considered eligible articles entitled to duty-free treatment under the CBERA (i.e., they are described in section 213(b) of the CBERA), the "foreign materials" making up the golf shirt and pullover may not represent more than 50% of each article's appraised value.

A. "Product of" Requirement

To comply with the requirements of General Note 3(a)(iv), we must first determine whether the bolts of cloth material imported into the Northern Mariana Islands become a product or manufacture of that possession by being substantially transformed there. A substantial transformation occurs "when an article emerges from a manufacturing process with a name, character, or use which differs from those of the original material subjected to the process." See The Torrington Co. v. United States, 764 F.2d 1563, 1568 (Fed. Cir. 1985).

Because the articles in question are textile products subject to section 204 of the Agricultural Act of 1956, as amended (7 U.S.C. 1854), section 12.130, Customs Regulations (19 CFR 12.130), is applicable. See T.D. 90-17 dated February 23, 1990 (country of origin rules regarding imported textiles are applicable to insular possessions). Section 12.130, Customs Regulations (19 CFR 12.130), sets forth criteria for determining whether a textile or textile product has been substantially transformed. A textile or textile product will be considered to have undergone a substantial transformation if it has been transformed by means of substantial manufacturing or processing operations into a new and different article of commerce. See 19 CFR 12.130(b). According to section 12.130(d)(2), the following will be considered in determining whether merchandise has been subjected to substantial manufacturing or processing operations: (1) the physical change in the material or article; (2) the time involved; (3) the complexity of the operations; (4) the level or degree of skill and/or technology required; and (5) the value added to the article in each country or territory.

Section 12.130(e)(iv), Customs Regulations (19 CFR 12.130(e)(iv)), states that the cutting of fabric into parts and the assembly of those parts into the completed article in a foreign country or insular possession will usually result in a substantial transformation of the fabric so as to confer country of origin. In this case, the operations of marking the imported fabric into pattern pieces, cutting the fabric into pieces of various sizes and shapes, and assembling the pieces together by means of numerous sewing operations to produce pullovers and golf shirts, result in a substantial transformation of the foreign fabric. Therefore, the pullovers and golf shirts are considered to be products of the Northern Mariana Islands for purposes of General Note 3(a)(iv), HTSUS.

B. Foreign Value Limitation Requirement

In order to determine whether the cost or value of the foreign fabric should be considered part of the cost of "foreign materials" or the cost of materials produced in the Northern Mariana Islands for purposes of the 50% foreign value limitation under General Note 3(a)(iv), we must consider whether such fabric undergoes a "double substantial transformation" in the insular possession. T.D. 88-17 applied the double substantial transformation concept to products of U.S. insular possessions for purposes of determining whether the products meet the value requirement under General Note 3(a)(iv), HTSUS. T.D. 88-17 concluded that:

If foreign material (material not originating in an insular possession) is transformed into a new and different product in an insular possession and then that product is trans- formed again in that insular possession to yet another new and different product which is imported into the U.S., its cost will be considered part of the value of materials produced in the insular possession.

We have held that, for purposes of the Generalized System of Preferences (GSP), an assembly process will not work a sub- stantial transformation unless the operation is "complex and meaningful." See C.S.D. 85-25, 19 Cust. Bull. 544 (1985). Whether an operation is complex and meaningful depends on the nature of the operation. It is necessary to consider the time, cost, and skill involved, the number of components assembled, the number of different operations, attention to detail and quality control, as well as the benefit accruing to the beneficiary developing country (BDC) as a result of the employment opportunities generated by the manufacturing process.

In Texas Instruments, Inc. v. United States, 681 F.2d 778 (Fed. Cir. 1982), the court implicitly found that assembly of 3 integrated circuits, photodiodes, one capacitor, one resistor, and a jumper wire onto a flexible circuit board (PCBA) constituted a second substantial transformation. It would appear that this assembly procedure does not achieve the level of complexity contemplated by C.S.D. 85-25. However, as the court pointed out in Texas Instruments, in situations where all the processing is accomplished in one GSP beneficiary country, the likelihood that the processing constitutes little more than a pass-through operation is greatly diminished. Consequently, if the entire processing operation performed in the single BDC is significant, and the intermediate and final articles are distinct articles of commerce, then the double substantial transformation requirement will be satisfied. Such is the case even though the processing required to convert the intermediate

article into the final article is relatively simple and, standing alone, probably would not be considered a substantial transformation. See HRL 071620 dated December 24, 1984 (in view of the overall processing in the BDC, materials were determined to have undergone a double substantial transformation, although the second transformation was a relatively simple assembly process which, if considered alone, would not have conferred origin).

We believe that the rationale stated above, which was adopted for GSP purposes, is equally applicable to products being imported from insular possessions. See T.D. 88-17 (General Note 3(a)(iv)(C) provides that articles imported from insular possessions under General Note 3(a)(iv) shall receive duty treatment "no less favorable" than that afforded under the GSP and Caribbean Basin Initiative programs).

Applying these principles to the processing of the foreign fabric in the Northern Mariana Islands, we believe that the double substantial transformation requirement is satisfied. First, we have consistently held that the cutting of fabric imported in continuous lengths into specific or defined shapes which can serve as components in an assembly operation is sufficient to substantially transform the fabric into new and different articles of commerce. See, e.g., Headquarters Ruling Letters (HRL's) 067823 dated June 2, 1982; 555189 dated June 12, 1989. Therefore, the cutting in the Northern Mariana Islands of the imported bolts of knit fabric into panels and other pieces of defined shapes and sizes will transform the foreign fabric into new and different articles of commerce. We believe that these panels and other pieces of fabric are considered to be intermediate articles of commerce which are ready to be put into the stream of commerce where they can be bought and sold. See Torrington, 764 F.2d at 1570.

We must next determine whether a second substantial transformation occurs in the Northern Mariana Islands. You have presented detailed statistical data on the manufacturing process of the two garments using the currently purchased, less expensive fabric. The assembly of the pullover involves 18 steps which are grouped together under the category of "sewing" operations. The cost of these operations constitutes approximately 12% of the total cost of the pullover, and the time involved is approximately 48% of the time required for all operations performed in the Northern Mariana Islands. The assembly of the golf shirt involves 42 steps which are grouped under the category of "sewing" operations. The cost of these operations constitutes approximately 30% of the total cost of the shirt, and the time involved is approximately 71% of the time required for all operations performed in the Northern Mariana Islands. Although

you claim that some of the operations involved in manufacturing both garments involve a relatively high level of skill, in general, it does not appear that highly skilled or trained workers are required. In addition, the time and cost of the inspection and trimming operations for both garments is minimal.

Weighing all these factors, we believe that the assembly operation of sewing the panels and other pieces into a finished pullover and golf shirt may not be complex enough to constitute a substantial transformation by itself. Nevertheless, we are of the opinion that the overall processing operations (i.e., marking, cutting, sewing, inspection, trimming, ironing, and packaging, and in the pullover, the additional operations of embroidering and pigment washing) performed in the single insular possession are substantial. For this reason, and in view of the production in the Northern Mariana Islands of distinct articles of commerce in the form of shirt and pullover panels and completed pullovers and shirts, we find that the double substantial transformation requirement is satisfied. Further, we do not believe that this is the type of minimal, "pass-through" operation that should be disqualified from receiving duty-free treatment under General Note 3(a)(iv). See C.S.D. 85-25; HRL 556104 dated September 10, 1991 (foreign fabric imported into the Northern Mariana Islands to be marked, cut, assembled by various sewing operations, ironed, and packed, undergoes a double substantial transformation when manufactured into men's cotton trousers).

HOLDING:

Based on the samples and information provided, we find that the foreign fabric imported into the Northern Mariana Islands will undergo the requisite double substantial transformation when manufactured into the men's "La Mode" golf shirt and "Sport" pullover. Therefore, pursuant to T.D. 88-17, the foreign fabric is not considered "foreign material" but, instead, is regarded as material produced in the insular possession for purposes of calculating the 50% foreign value limitation under General Note 3(a)(iv), HTSUS. Since the cost of the remaining foreign accessory items incorporated in the garments represents less than 10% of each garment's total value, the imported golf shirts and pullovers satisfy the 50% foreign value limitation under General Note 3(a)(iv), HTSUS, and, therefore, are entitled to duty-free treatment, assuming they are imported directly into the U.S.

Because the Northern Mariana Islands are not a foreign country, and the U.S. has no bilateral quota or visa agreements

with them, the golf shirt and pullover, as products of the Northern Mariana Islands, are not subject to quota or visa requirements.

Sincerely,

John Durant, Director
Commercial Rulings Division