CLA-2 CO:R:C:S 557331 BLS

District Director of Customs
U.S. Customs Service
Lincoln Juarez Bridge, Bldg #2
Laredo, Texas 78044-3130

RE: I.A. 31/93; Eligibility of coffeemaker for duty-free treatment under GSP; Reconsideration of HRL 063914; shelter fee

Dear Sir:

This is in reference to your letter dated April 16, 1993, requesting internal advice regarding the eligibility of a coffeemaker imported from Mexico for duty-free treatment under the Generalized System of Preferences (GSP). A second issue involves the dutiability of a "shelter fee" included in the invoice price to the purchaser.

FACTS:

Plastic pellets of U.S. origin are sent to Mexico to be molded into coffeemaker components which are assembled with other materials in creating the coffeemaker. The molded components are the shell, base assembly, base bottom, carafe cover, and cover (shell). These components are then assembled with the other materials, also of U.S. origin, as follows:

A) Heating Element Assembly

1. Weld thermal limiter to thermostat.

2. Assemble thermostat assembly to heating element with spring. Use fixture No. EA-1 to ensure proper location.

3. Dip ends of tubes in safflower oil and slide over ends of element water tube. Use fixture No. EA-1.

4. Weld thermal liter to element terminal.

B) Switch Assembly

1. Insert switch into hole in base assembly. Slide two gaskets over projections on shell. Place base assembly on shell.

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2. Assemble base to shell with three screws using power screwdriver.

3. Drop ball valve into outlet tube on shell. Place gasket in groove in insulating ring. Place warming tray over gasket with raised outer ring toward gasket. Use support fixture SS-1.

4. Dip short ends of manifold in safflower oil and place in MA-1 fixture. Assemble heating element assembly to manifold by pushing tubes over projections on manifold.

Dip long end of manifold in safflower oil and assemble to shell by pushing down over projections. Use support fixture MA-2.

5. Center element on warming tray. Place support spring over element and assemble with four screws. Use power screwdriver and support fixture SS-1.

6. Assemble wire lead to thermostat and to terminal No. 1 on switch with push-on connections. Assemble wire lead to element and to terminal No. 3 on switch.

7. Place base bottom on fixture and hot stamp model number and date. Insert cord in retainer in base bottom and press into place.

8. Attach smooth cord lead to terminal No. 2 and ribbed cord lead to piggy-back terminal on switch. Check all wiring for proper clearances. Snap base bottom in place and attach with two screws and support fixture SS-1.

9. Check hoses with air pressure test fixture.

10. Place unit on electrical test fixture and plug in. Test for accidental ground and electrical continuity.

11. Assemble handle, handle band, and screw to glass carafe using power screwdriver and assembly fixture CH-1. Handle must be directly opposite pouring spout. Diecut pad and place over carafe. Place carafe cover on carafe.

12. Put spout and literature inside tank. Slip over unit. Place pad on warming tray and set carafe assembly on pad.

13. Glue carton label to blank panel of carton. Stamp date code on carton.

14. Set-up carton and tape bottom flaps.

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15. Pack unit in carton. Slide shell cover in place beside carafe with front edge of cover downward. Place pad on carafe and basket on pad. Wrap cord around basket.

16. Close top of carton and tape.

17. Pack four units per master carton.

The seller and the importer have contracted to have the coffeemakers assembled at a cost of $0.39 per unit. The total cost is accounted for by the seller as follows:

Labor cost: .13/unit Assist cost: .13/unit Shelter fee: .13/unit

The seller claims that the $0.13/unit "shelter fee" is an administrative expense incurred in the U.S. and not an expense incurred abroad as part of the assembly process, and that this fee is not part of the appraised value of the imported merchandise. According to the concerned import specialist, the imported merchandise is being appraised on the basis of transaction value. Your office takes the position that the "shelter fee" is part of the appraised value of the imported merchandise,and that the "shelter fee" qualifies as a selling commission as defined in 19 CFR 152.103(b)(ii).

ISSUES:

1) Whether the molded plastic components produced from U.S. origin material are considered constituent materials of the completed coffeemaker, for purposes of determining whether the imported article satisfies the 35% value-content requirement under the GSP.

2) Whether the "shelter fee" paid to the seller is included in the transaction value of the imported merchandise.

LAW AND ANALYSIS:

1) GSP

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 in the BDC, is equivalent to at least 35 percent of the appraised value of the article at the time

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of entry. See, 19 U.S.C. 2463(b).

Mexico is a designated BDC. See, General Note 3(c)(ii)(A), HTSUS. In addition, it appears from a description of the merchandise that the articles in question are classified under subheadheading 8516.71.0020, HTSUS, "Other electrothermic appliances, Coffeemakers, Automatic drip and pump type", a GSP eligible provision.

The cost or value of materials which are imported into the BDC to be used in the production of the article, as here, may be included in the 35% 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. 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).

"[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." Torrington Co. v. United States, 764 F.2d 1563, 1568, 3 CAFC 158, 163 (Fed. Cir. 1985).

We have consistently held that products created by a thermal injection molding process have undergone a substantial transformation. See, Headquarters Ruling Letter (HRL) 071518, dated November 8, 1984, HRL 071534, dated July 19, 1984, and HRL 555659, dated December 3, 1990 (molded plastic parts, such as handles, folding hinges, and folding clips are different articles from the plastic resins from which they are made). Accordingly, the molded plastic coffeemaker components have undergone a substantial transformation. The issue which now must be addressed is whether such components undergo a second substantial transformation and become constituent materials of the completed coffeemaker.

In this regard, you believe that the subsequent processes which involve assembly of the molded parts to the other materials to create the finished article are minor operations and do not qualify as a second substantial transformation. You advise that HRL 063914, dated August 15, 1980, ruled in favor of the importer on a similar issue, and you request that we reconsider that ruling. We held in that case that the plastic components produced by a thermoplastic injection molding process from polypropylene pellets were considered Mexican constituent components of the coffeemaker

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for GSP purposes, and that accordingly their cost was includible in computing the 35% value-content requirement.

In the instant case, the operations performed after the molding process, to complete the coffeemaker, which include welding, screwing, and force fitting, are clearly processes of assembly. However, in this regard, we find the principle as enunciated by the court in Texas Instruments v. United States, 681 F.2d 778 (Fed. Cir. 1982), to be relevant. In that case, the court pointed out that 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 product is relatively simple and by itself, 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).

As applied to this case, while the assembly of the coffeemaker does not appear to be exceedingly complex, we do not believe that the overall processing necessary to create the completed article is the type of simple or minimal "pass-through" operation that should be disqualified from receiving GSP benefits. See C.S.D. 85- 25; HRL 071620. See also HRL 555921 dated June 17, 1991 (a substantially transformed PCBA is subjected to a second substantial transformation by final assembly with a plastic housing, cathode ray tube, harnesses, and other parts to create a computer terminal).

In determining whether the combining of parts or materials constitutes a substantial transformation, the primary consideration is whether a new and different article of commerce with a distinct name, character, and use results from the operations which constitute the final assembly. In this regard, the ultimate use and essential character of the final article, the coffeemaker, is not determined until completion of the assembly process. It is further noted that the cost of assembly constitutes approximately 35% of the cost of the operations performed in Mexico, a not insignificant sum which also reflects that this process is not merely a "pass-through" operation.

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2) Shelter Fee

The preferred method of appraisement is transaction value which is defined by section 402(b)(1) of the Tariff Act of 1930, as amended by the Trade Agreements Act of 1979 (TAA, 19 U.S.C. 1401a(b)) as "the price actually paid or payable for the merchandise when sold for exportation to the United States..." plus certain additions specified in section 402(b)(1)(A) through (E). The term "actually paid or payable" is defined in TAA section 402(b)(A) as:

...the total payment (whether direct or indirect...) made, or to be made, for imported merchandise by the buyer to, or for the benefit of, the seller.

It is the position of the Customs Service that all monies paid to the seller, or a party related to the seller, are part of the price actually paid or payable for the merchandise under transaction value. See e.g., Generra Sportswear Co. v. United States, 905 F.2d 377 (Fed. Cir. 1990); HRL 544640 dated April 26, 1991. Consequently, the payments made to the seller for the assembly services provided by the assembler are part of the price actually paid or payable.

As we find that the "shelter fee" is part of the price actually paid or payable for the merchandise and there is no authority to take it out, we do not reach the question of whether the "shelter fee" is a selling commission.

HOLDING:

1) The molded coffeemaker components are substantially transformed constituent components of the coffeemaker into which such components are incorporated. Therefore, the cost of these components may be included in the 35% value-content calculation under the GSP for purposes of determining whether the imported coffeemaker will be entitled to duty-free treatment under that provision.

2) The "shelter fee" included in the unit price of the imported merchandise is part of the price actually paid or payable for the imported merchandise, and is therefore included in the transaction value of the merchandise.

Sincerely,

John Durant, Director
Commercial Rulings Division