CLA-2 CO:R:C:S 556647 SER

Diane L. Weinberg, Esq.
Sandler, Travis & Rosenberg, P.A.
505 Park Avenue
New York, NY 10022-1106

RE: Men's dress and sport shirts created by cutting and sewing; General Note 3(a)(iv), HTSUSA; insular possession; substantial transformation; HRLs 556104, 556214

Dear Ms. Weinberg:

This is in reference to your letters of April 10, 1992 and April 21, 1992, on behalf of Saipan Manufacturers, Inc., concerning the eligibility of certain woven dress and sports shirts from the Northern Mariana Islands for duty-free treatment under General Note 3(a)(iv), Harmonized Tariff Schedule of the United States Annotated (HTSUSA).

FACTS:

Foreign fabrics wholly of cotton, or foreign fabrics manufactured from a blend of cotton and man-made fibers, from Hong Kong, and foreign trim from Hong Kong, consisting of buttons, pins, plastic collar supports, hang tags, labels and tissue papers are sent to the Northern Mariana Islands.

In the Northern Mariana Islands, the foreign fabrics are inspected, and graded patterns are prepared by styles and sizes. The fabrics are then marked according to the graded patterns on a cutting table. The piece goods are cut into shaped component parts, consisting of two front panels, one back panel, a breast pocket, collar bands, two sleeves, a yoke, and upper and lower collars. For the manufacture of the long-sleeved shirts, cuffs and interlining for the collars, fronts, and cuffs will be cut from the fabric. After the parts are cut, all the component pieces will be assembled by sewing and tailoring into a finished men's shirt.

More than 40 steps are involved in the manufacture of each dress shirt and about 35 steps are involved in the manufacture of the short-sleeved sport shirts.

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ISSUE:

Whether the woven dress and sport shirts will be entitled to duty-free entry under General Note 3(a)(iv), HTSUSA, when imported into the U.S.

LAW AND ANALYSIS:

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

(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 Economic 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 Executive Order 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 Cus.Bull. 825 (1983). Since Guam is an insular possession, and products of Guam are eligible for duty-free treatment under General Note 3(a)(vi), HTSUSA, products of the Northern Mariana Islands are also eligible for duty-free treatment under General Note 3(a)(iv), HTSUSA.

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Since men's woven dress and sport shirts are subject to textile agreements, and are not considered eligible articles entitled to duty-free treatment under the CBERA, the "foreign materials" used in the manufacture of the shirts may not represent more than 50% of each article's appraised value.

1. "Product of" Requirement

To comply with the requirements of General Note 3(a)(iv), HTSUSA, it must first be determined whether the cloth material imported into the Northern Mariana Islands become a "product of" that possession by being substantially transformed in the Northern Mariana Islands. A substantial transformation occurs "when an article emerges from a manufacturing process with a new name, character or use which differs from that possessed by the article prior to the processing." Texas Instruments, Inc. v. United States, 69 CCPA 152, 156, 681 F.2d 778, 782 (1982).

Because the articles at issue are textile products subject to the restrictions of section 204 of the Agricultural Act of 1956, as amended (U.S.C.1854), section 12.130, Customs Regulations (19 CFR 12.130), is applicable. See, Treasury Decision (T.D.) 90-17 dated February 23, 1990 (country of origin rules regarding imported textiles are determined to be applicable to U.S. insular possessions). Section 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 19 CFR 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.

According to 19 CFR 12.130(e)(iv), 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 render the article a product of that country or insular possession. In this case, the operations in the Northern Mariana Islands of cutting the fabric into shaped component parts and assembling the pieces together by means of numerous sewing operations to produce the shirts result in a substantial transformation of the foreign fabric. Therefore, the woven dress and sport shirts are considered to be "products of" the Northern Mariana Islands for purposes of General Note 3(a)(iv), HTSUSA. -4-

2. 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), HTSUSA, we must consider whether such fabric undergoes a double substantial transformation in the insular possession. Treasury Decision 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), HTSUSA. This decision 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 into 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.

Customs consistently has held that cutting of fabric to shape constitutes a substantial transformation. See, e.g., Headquarters Ruling Letters (HRLs) 556214 March 20, 1992, and 555189 dated June 12, 1989. It is our position that the cutting of the fabric in the instant case into specific shapes which can serve as components in an assembly operation constitutes a substantial transformation of the fabric into new and different articles of commerce.

It must next be determined whether a second substantial transformation occurs as a result of the assembly operations performed in the Northern Mariana Islands. You state that more than 40 steps are involved in assembling of the component pieces into the final articles for the long-sleeved dress shirts and about 35 steps for the assembly of the component fabric pieces for the short-sleeved sport shirts into the final articles.

Customs has held that, for purposes of the Generalized System of Preferences (GSP), an assembly process will not work a substantial transformation unless the operation is "complex and meaningful." See, C.S.D. 85-25, 19 Cus.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 -5-

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 the Texas Instruments, Inc. v. U.S. case, supra, the court implicitly found that the assembly of three integrated circuits, photodiodes, one capacitor, one resistor, and a jumper wire onto a flexible printed circuit board (PCB) constituted a second substantial transformation. It would appear that the above 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.

General Note 3(a)(iv)(C), HTSUSA, provides that articles imported from insular possessions under General Note 3(a)(iv), HTSUSA, shall receive duty treatment "no less favorable" than that afforded under the GSP and Caribbean Basin Initiative programs. Thus, it is Customs position that the above rationale, as explained in Texas Instruments, and applied to the GSP, is equally applicable to products being imported from U.S. insular possessions.

Although the final assembly operations in this case, consisting primarily of sewing the component pieces to form the final article, may not be complex enough to constitute a substantial transformation by itself, nevertheless, consistent with the rationale elicited in Texas Instruments, it is our position that the assembly of the final articles constitutes a second substantial transformation. The overall processing (i.e., inspection, marking, cutting, sewing, and packaging) performed in the U.S. insular possession is substantial. Furthermore, 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), HTSUSA. This is also consistent with HRLs 556214 dated March 20, 1992, and 556104 dated September 10, 1991.

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HOLDING:

Based on the samples and information provided, we find that the woven men's dress shirts and sport shirts are "products of" the Northern Mariana Islands. In addition, the foreign fabric imported into the Northern Mariana Islands will undergo a double substantial transformation when manufactured into the shirts, and, therefore, pursuant to T.D. 88-17, the foreign fabric is not considered "foreign material". Rather, it is considered material produced in the insular possession for purposes of calculating the 50% foreign value limitation of General Note 3(a)(iv), HTSUSA. Accordingly, if the 50% foreign value limitation is satisfied, the shirts will be entitled to duty-free treatment under General Note 3(a)(iv), HTSUSA, 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 shirts, as products of Northern Mariana Islands, are not subject to quota or visa requirements.

Sincerely,

John Durant, Director
Commercial Rulings Division