CLA-2 CO:R:C:S 557192 MLR

Mr. T. H. Mitchell
Traffic Manager
Lancaster Leaf
198 West Liberty Street
P.O. Box 897
Lancaster, PA 17803

RE: Eligibility of hand-stripped leaf tobacco for duty-free treatment under the Caribbean Basin Economic Recovery Act (CBERA)

Dear Mr. Mitchell:

This is in response to your letter dated March 11, 1993, requesting a ruling on the eligibility of hand-stripped leaf tobacco from a designated beneficiary country ("BC") for duty- free treatment under the Caribbean Basin Economic Recovery Act (CBERA) (19 U.S.C. 2701-2706).

FACTS:

Lancaster Leaf Tobacco Company plans to purchase leaf tobaccos such as French Paraguay dark aircured tobacco, at an approximate cost of $.56 per pound, Free on Board European port. This tobacco will be shipped to a BC (possibly the Dominican Republic, Nicaragua, or Honduras) to be hand-stripped at an approximate cost of $.35 per pound. In a letter dated June 29, 1993, you describe the hand-stripping process. The leaf of tobacco is conditioned by applying moisture to make it pliable. Workers then carefully hand-strip the lamina (the portion of the leaf that is not stem) from the large center stem of the leaf. It is stated that this transforms the original leaf into a form which can be readily used in the manufacture of a chewing tobacco product. Hand-stripping is stated to produce a superior raw material because more stem can be removed with far less damage to the lamina than can be done by machine threshing. It is also mentioned that approximately one hundred laborers will be employed in the hand-stripping processing of the tobacco contained in each forty foot ocean container (approximately 40,000 pounds). After the hand-stripping process, the tobacco will be imported into the U.S. for resale.

You also state that the leaf tobacco shipped to the BC is classifiable under subheading 2401.10, Harmonized Tariff Schedule of the United States (HTSUS), and the hand-stripped tobacco is classifiable under subheading 2401.20, HTSUS.

ISSUE:

Whether the leaf tobacco which is hand-stripped in a BC is substantially transformed into a "product of" the BC for purposes of the CBERA.

LAW AND ANALYSIS:

Under the CBERA, eligible articles the growth, product, or manufacture of a BC, which are imported directly to the U.S. from a BC, qualify for duty-free treatment, provided the sum of (1) the cost or value of materials produced in a BC or two or more BC's, plus (2) the direct costs of processing operations performed in a BC or BC's is not less than 35 percent of the appraised value of the article at the time it is entered into the U.S. 19 U.S.C. 2703(a)(1).

As stated in General Note 3(c)(v)(A), HTSUS, the Dominican Republic, Nicaragua, and Honduras are designated as BC's under the CBERA. In addition, it appears that the hand-stripped tobacco leaf is classifiable in subheading 2104.20, HTSUS. Although you did not provide the exact eight digit subheading, all of categories under Heading 2104 are CBERA-eligible provisions. Therefore, the tobacco will receive duty-free treatment if it is considered to be the "product of" a BC, the 35 percent value-content minimum is met, and the tobacco is "imported directly" into the U.S.

Under the Customs Regulations implementing the CBERA, an eligible article may be considered a "product of" a BC if it is either wholly the growth, product, or manufacture of a beneficiary country, or a new or different article of commerce which has been grown, produced, or manufactured in the BC. See 19 CFR 10.195. Accordingly, where materials are imported into a BC from a non-BC, as in this case, those materials must be substantially transformed into a new and different article of commerce, a "product of" the BC. The cost or value of those materials may be included in calculating the 35 percent value- content requirement only if they undergo a "double substantial transformation" in the BC. See 19 CFR 196(a); 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 Headquarters Ruling Letter (HRL) 553120 dated September 28, 1984, we held that cigar leaf tobacco processed into cigar scrap tobacco in the Dominican Republic qualified for duty-free treatment under the Caribbean Basin Initiative (CBI). Some of the operations performed included: placing cigar leaf tobacco of Dominican and foreign origin in a vacudyne machine which adds moisture to the tobacco leaves; blending tobacco of various grades; placing the tobacco leaves in sweat boxes for up to two weeks under high temperature and moisture to reduce the nicotine; mellowing the tobacco; creating certain chemical changes to reduce objectionable elements; cutting the tobacco leaves into particles; stemming the tobacco pieces; running the tobacco pieces through a series of threshers and separators to strip the lamina of the tobacco particles off the stem and separate the lamina from the stem by means of air suction; running the tobacco pieces over vibrating screens to remove fine particles detrimental to cigar manufacture; and placing the tobacco pieces in drying chambers to reduce the moisture content from approximately 25 percent to 13 to 15 percent necessary for cigar manufacturing.

It was stated in HRL 553120, that because some of the leaf tobacco used in the production of the cigar scrap tobacco was grown in Europe and/or the Far East, the cigar scrap tobacco was not wholly the growth, product, or manufacture of the Dominican Republic; therefore, to be eligible for CBI treatment the non- Dominican leaf tobacco had to be substantially transformed into a new or different article of commerce by virtue of its conversion into scrap tobacco. The eleven distinct steps, especially the reduction of nicotine, mellowing of the tobacco, and chemical changes, supplemented with frequent quality control tests, various machines and other equipment used in the manufacturing process which required some degree of technical skill on the part of the Dominican workers, and the significant amount of time required for the entire production process, were important factors in determining that the Dominican processing was a substantial manufacturing operation. See also HRL 553825 dated February 4, 1986.

In the instant case, the leaf tobacco is only conditioned by applying moisture to make it pliable, and hand-stripped in a BC. The hand-stripping process involves removing the lamina (the portion of the leaf that is not stem) from the large center stem of the leaf. This does not involve such operations as in HRL 553120 (i.e., chemical changes, reduction of nicotine, etc.), which were determined to be important in finding that the tobacco substantially transformed. Therefore, we find that the hand- stripped tobacco in this instance is not substantially transformed into a product of a BC, and will not qualify for the duty exemption under the CBERA when imported into the U.S.

HOLDING:

Based on the information submitted, we find that the leaf tobacco which is hand-stripped in a BC is not substantially transformed into a "product of" a BC. Therefore, the hand- stripped tobacco will not qualify for duty-free treatment under the CBERA when imported into the U.S.

Sincerely,

John Durant, Director