CLA-2 CO:R:C:S 557066 MLR

Cheryl Ellsworth, Esq.
Harris & Ellsworth
2600 Virginia Ave., N.W.
Suite 1113
Washington, D.C. 20037-1905

RE: Eligibility of steel tanks for duty-free treatment under the Generalized System of Preferences; double substantial transformation; compressed or liquified gas.

Dear Ms. Ellsworth:

This in is response to your letter dated December 15, 1992, on behalf of your client, requesting a ruling on the eligibility of steel tanks from Mexico for duty-free treatment under the Generalized System of Preferences (GSP).

FACTS:

Trinity Industries, Inc. ("Trinity") plans to import steel tanks (stationary type) for the storage of compressed or liquified gas from Mexico. The tanks are produced in Mexico from tank heads (end closures) and/or shells which are formed from rectangular hot-rolled carbon steel coil or steel plate produced in a country other than Mexico. The tanks are produced in varying sizes, ranging from 120 w.g. (water gallons) to 1000 w.g.

Where steel coil is utilized, the coils are de-coiled and flattened by a series of rolls. The flattened material is fed into a press where it is cut into a circular shape known as a "blank." The blanks are lubricated and individually hand-fed into a press. The press forces a male die into the blank, causing the blank to deform into a female die, forming either a hemispherical or, in some instances, an elliptical shape. The hemispherical or elliptical shape is then given a chemical wash to remove forming compounds. The excess collar or flange which results from the cold forming process is removed by means of a mechanical cutting operation. An indented lip, or joggle, conforming to American Society of Mechanical Engineers (ASME) standards for pressure tank joints, is pressed into the circumference of each tank head to form a recessed joint around which the tank cylinder eventually is fitted and welded. Each tank head is also stamped or marked to identify the steel manufacturer's head and slab numbers.

The shell of the tank is also manufactured from hot-rolled carbon steel. Some material is received in coil form and requires de-coiling, flattening, and testing to assure that the relevant specifications are satisfied. The flat material is sheared to a specified width which corresponds to the diameter of the tank heads which are to be used to construct a particular tank. Identification markings, including the manufacturer's heat and slab numbers, are placed on each cut piece, and holes are punched or cut in each piece to conform with the specification provided. At this point, the shell is stated to be completely dedicated for use in producing a specified tank.

Next, one edge of each shell plate is mechanically preformed into a curvature. This preforming process is essential to precise rolling of the tank cylinder. The piece is then rotated 180 degrees, and the tank shell is rolled from the edge opposite the preformed edge to form a cylinder. The jointed edges of the cylinder are tack welded to hold the cylindrical shape. The cylinder is rolled to a welding station where a design-specific welding fixture is used to submerge arc weld the inside longitudinal seam. The outside longitudinal seam is also welded. Then, the longitudinal weld seam is non-destructively examined using an end-motion real-time radioscopic x-ray to detect any inferior weld area. The cylinders and matching tank heads are then moved to a tank manufacturing area for additional processing and assembly to achieve a finished tank.

At this point, the specified joggled tank heads are force fitted to the appropriate cylinder, with the amount of overlap and related features dictated by the ASME code. The heads are tack welded and then permanently attached by submerge arc welding around the outer circumference. Four tank legs and two lifting lugs are welded to the outside of the tank body. Threaded couplings which will accommodate fill valves, liquid withdrawal valves, relief valves, service valves and the like are fitted in the appropriate openings and welded in place. The tank is then hydrostatically tested by installing steel plugs in all openings, filling the tank with water, pressurizing the tank up to 500 p.s.i. and visually inspecting all welds. The water is drained from the tank and the tank is heated to remove any remaining moisture. The tank is then sand blasted and painted. All threaded valves are installed. Lastly, the tank is filled with 200 p.s.i. air pressure to check the valves and threads for any leaks, the manufacturer nameplate is attached, and a final external inspection is performed.

ISSUE:

Whether the steel coil and plate imported into Mexico and used in the production of the finished tanks undergo a double substantial transformation, thereby permitting the cost or value of the steel coil and plate to be included in the 35 percent value-content calculation required for eligibility under the GSP.

LAW AND ANALYSIS:

Under the GSP, eligible articles the growth, product or manufacture of a designated beneficiary developing country (BDC) which are imported directly into the customs territory of the U.S. from a BDC may receive duty-free treatment if the sum of (1) the cost or value of materials produced in the BDC, plus (2) the direct costs of the processing operations performed in the BDC, is equivalent to at least 35 percent of the appraised value of the article at the time of entry into the U.S. See 19 U.S.C. 2463(b).

As stated in General Note 3(c)(ii)(A), Harmonized Tariff Schedule of the United States (HTSUS), Mexico is a designated BDC for purposes of the GSP. To determine whether an article will be eligible to receive duty-free treatment under the GSP, it must first be classified under a tariff provision for which a rate of duty of "Free" appears in the "Special" subcolumn followed by the symbol "A" or "A*." Steel tanks for the stationary storage of compressed or liquified gas are classified under subheading 7311.00.00, HTSUS, which is a GSP-eligible provision.

Where an article is produced from materials imported into the BDC, as in this case, the article is considered to be a "product of" the BDC for purposes of the GSP only if those materials are substantially transformed into a new and different article of commerce. See 19 CFR 10.177(a)(2). The cost or value of materials which are imported into the BDC may be included in the 35 percent value-content computation only if the imported materials undergo a double substantial transformation in the BDC. That is, the non-Mexican components must be substantially transformed in Mexico into a new and different intermediate article of commerce, which is then used in Mexico in the production of the final imported article, the steel tank. See section 10.177(a), Customs Regulations {19 CFR 10.177(a)}; and Azteca Milling Co. v. United States, 703 F. Supp. 949 (CIT 1988), aff'd, 890 F.2d 1150 (Fed. Cir. 1989).

The test for determining whether a substantial transformation has occurred is whether 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, 156, 681 F.2d 778, 782 (1982). In order to achieve a "double substantial transformation", the materials imported into the BDC must be substantially transformed into a new or different intermediate article of commerce, which is substantially transformed a second time into the final article. The intermediate article itself must be an article of commerce, which must be "readily susceptible of trade, and be an item that persons might well wish to buy and acquire for their own purposes of consumption or production." Torrington Co. v. United States, 8 CIT 150, 596 F. Supp. 1083 (1984), aff'd, 764 F.2d 1563 (Fed. Cir. 1985).

It is alleged that the steel coil and plate are substantially transformed in Mexico into tank heads or shells, and that these articles are subsequently substantially transformed into complete, finished tanks. As a result, the cost or value of the steel tank heads and/or shells should be included within the cost of "materials produced" in Mexico for purposes of the GSP. The first substantial transformation is alleged to be complete after the tank shells have been cut and holes have been punched, because at that point, the shells are completely dedicated for use in manufacturing a specific tank. However, it is alleged that consistent with Headquarters Ruling Letter (HRL) 555532 dated September 18, 1990, even if the first substantial transformation is not considered to be complete until the shell is rolled into a cylinder and welded, the remaining steps in fabricating the tank heads, cylinders, and other components into finished tanks are significant enough to constitute a substantial transformation for these purposes.

The finished steel tanks clearly emerge as new and different articles in comparison to the steel coil and plate from which they are made; therefore, the steel tanks would be considered a "product of" Mexico. However, the issue to be resolved is whether, during the manufacture of the steel tanks, the steel coil and plate are substantially transformed into separate and distinct intermediate articles of commerce which are then used in the production of the finished steel tanks.

In general, Customs has held that cutting or bending materials to defined shapes or patterns suitable for use in making finished articles, as opposed to mere cutting to length or width which does not dedicate the resulting material to a particular use, constitutes a substantial transformation. You cite C.S.D. 91-15 (HRL 555702 dated January 7, 1991), where Customs considered the eligibility of industrial high density hydraulic balers from Mexico for duty free treatment under the GSP. It was held that the processes to which the steel plates were subjected in Mexico -- cutting by means of shearing, and flame torch cutting; shaping by means of folding, bending, scraping, drilling, and grinding -- resulted in various components that were dedicated for use in the assembly of the final article, and were considered substantially transformed products.

In addition, you cite HRL 555532 where Customs held that the creation of top and bottom pans, used in the production of water heaters, by blanking the steel materials, die forming (or drawing), and die piercing constituted a substantial transformation. It was stated that "the result of these processing operations in Mexico is the creation of new and different articles, such as a shell or disk, each of which has a distinct character and use that is not inherent from any of its separate components."

Lastly, as support that the tank heads and shells are distinct articles of commerce in the sense that they are actually bought and sold, you cite HRL 085359 dated November 17, 1989, and NY 847846 dated December 20, 1989. In HRL 085359, Trinity imported joggled tank heads which were classified under subheading 7326.90.9090, HTSUS, as "Other articles of iron or steel:...Other," and in your ruling request dated August 14, 1989, you stated that the tank heads are commercially functional parts of pressure containers, and are recognized by the industry as such." In NY 847846, the shells were evidently classified under subheading 7208.90.00, HTSUS, which provides for flat- rolled products of iron or nonalloy steel, of a width of 600 millimeters (mm) or more, hot-rolled, not clad, plated or coated, other. You also stated in a telephone conversation with a member of my staff that Trinity has purchased tank heads and shells in the past.

Based on the rulings above, we find that the processes of de-coiling, flattening, pressing, cutting, shearing-to-width, punching, and forming a curvature, substantially transform the steel coils and plates into tank heads and shells. These operations substantially transform the imported steel into a new and different article of commerce, alter the physical characteristics of the metal coils and plates, and affect the uses to which they may be put. Prior to these operations, the metal coils and plates are raw materials which do not possess the characteristics of components for steel tanks. After the operations, however, the steel components are dedicated to a particular use - the manufacture of steel tanks.

The remaining issue to be addressed concerns whether a second substantial transformation results when the steel tank heads and shells are assembled into the finished steel tanks.

In C.S.D. 85-25 (HRL 071827 dated September 25, 1984), Customs considered the issue of whether the assembly of components onto a circuit board resulted in a substantially transformed constituent material. In that decision, Customs held that an assembly process will not constitute a substantial transformation unless the operation is "complex and meaningful." Whether an operation is complex and meaningful depends on the nature of the operation, including the number of components assembled, number of different operations, time, skill level required, attention to detail, quality control, and the benefit to the BDC from the standpoint of both the value added to the article and the overall employment generated by the manufacturing process. In C.S.D. 85-25, it was stated that the factors which determine whether a substantial transformation occurred should be applied on a case-by-case basis.

In C.S.D. 91-15, it was determined that a significant number of operations, including significant welding procedures, were required to complete the balers. Therefore, it was held that the final assembly operation resulted in a new and different finished article of commerce with a name, character, and use different from the numerous components of which it was made. Furthermore, in HRL 555532, Customs concluded that the assembly of the water heaters resulted in a second substantial transformation of the fabricated components.

In this case, we find that the assembly of the steel tank heads and shells by means of tack welding and submerge arc welding to create the steel tanks, where the steel tank heads and shells are fabricated in Mexico, is a complex and meaningful assembly operation. Moreover, we have previously held that the welding together of individual steel container components constituted a substantial transformation of the materials produced in the BDC. See HRL 555111 dated March 14, 1989, which held that container parts which were sheared to size and bent, notched or drilled in a BDC to form component container parts which were subsequently welded together to produce completed containers, resulted in a double substantial transformation. Therefore, we are of the opinion that the joining of the steel tank heads and shells results in a second substantial transformation of the steel coil and plate, changing their character and use.

Furthermore, in determining whether combining parts or materials constitutes a substantial transformation, an additional consideration is whether the parts lose their identity and become an integral part of the new article. See Belcrest Linens v. United States, 741 F.2d 1368 (Fed. Cir. 1984). In the assembly of the articles at issue, there is an integration of the tank heads and shells to the point where they lose their separate identity. Moreover, the assembly process affects the character and use of the steel component parts so that they become articles specifically adapted for use in the steel tanks.

Finally, the fabrication and assembly operations involved in manufacturing the steel tanks are not the type of "pass-through" operations which Congress intended to prohibit from receiving GSP benefits. "The provision would not preclude meaningful assembly operations utilizing foreign components, provided the assembly is of significance to the local economy, meets the 35 percent local content rule, and results in a new and different article." See H.R. Rep. No. 98-266, 98th Cong., 1st Sess. 13 (1983).

HOLDING:

Based on the information submitted, we find that the de- coiling, flattening, pressing, cutting, shearing-to-width, punching, and forming curvatures in Mexico, substantially transform the imported steel plates and/or coils into tank heads and/or shells. Additionally, the complex assembly of the steel tank heads and shells to create the finished steel tanks results in a second substantial transformation of the steel materials comprising the steel tanks, thereby permitting the cost or value of the steel coils or plates imported into Mexico to be included in the GSP 35 percent value-content requirement. Therefore, the steel tanks which are "products of" Mexico, will be entitled to duty-free treatment under the GSP, provided, the classification that is applicable at this time is a GSP eligible tariff provision at the time of entry, the steel tanks are imported directly into the U.S., and the 35 percent value-content requirement is satisfied.

Sincerely,

John Durant, Director
Commercial Rulings Division