CLA-2 CO:R:C:S 557921 WAS

Mr. James F. Carroll
J.M. Rodgers Co., Inc.
International Freight Forwarders
90 West Street, Room 1510
New York, N.Y. 10006-1039

RE: "Imported Directly"; 19 CFR 10.175; Singapore; T.D. 92-6

Dear Mr. Carroll:

This is in response to your letter dated May 4, 1994, addressed to the New York Seaport, concerning whether merchandise which is produced in Indonesia and shipped to either Dubai, U.A.E. or Singapore for sale before being imported into the U.S. will satisfy the "imported directly" requirement under the Generalized System of Preferences (GSP) (19 U.S.C. 2461-2466).

FACTS:

In your letter, you state that the facts under the first scenario are as follows:

The importer buys merchandise which has been manufactured in Indonesia and is otherwise eligible for duty-free status. A certificate of origin is available. The seller is a Japanese firm. At the time the goods leave Indonesia they have not yet been sold to the U.S. importer. Before that sale takes place, the goods travel to Dubai, U.A.E., where they are warehoused pending the sale. While in Dubai, the goods do not in any way, enter the commerce of that country. Once the sale is initiated, and the L/C opened to the Japanese firm, the goods are loaded on a vessel for New York.

Under the second scenario, you state that the facts are the same as under the first scenario, except that the goods are shipped from Indonesia to Singapore pending the sale before being imported into the U.S. As under the first scenario, you state that the goods under the second scenario do not enter into the commerce of Singapore while warehoused there. ISSUE:

Whether merchandise which is produced in Indonesia and shipped to either Dubai, U.A.E. or Singapore for sale before being imported into the U.S. will satisfy the "imported directly" requirement for purposes of the GSP?

LAW AND ANALYSIS:

Under the GSP, eligible articles the growth, product or manufacture of a designated 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).

The issue in this case concerns whether merchandise which is produced in Indonesia and shipped to either Dubai, U.A.E. or Singapore for sale before being imported into the U.S. will satisfy the "imported directly" requirement for purposes of the GSP.

The term "imported directly" from a BDC, for GSP purposes, is defined in section 10.175, Customs Regulations (19 CFR 10.175). Subsection 10.175(d) states as follows:

If the shipment is from any beneficiary developing country to the U.S. through the territory of any other country and the invoices and other documents do not show the U.S. as the final destination, the articles in the shipment upon arrival in the U.S. are imported directly only if they:

(1) Remained under the control of the customs authority of the intermediate country;

(2) Did not enter into the commerce of the intermediate country except for the purpose of sale other than at retail, and the district director is satisfied that the importation results from the original commercial transaction between the importer and the producer or the latter's sales agent; and

(3) Were not subjected to operations other than loading and unloading, and other activities necessary to preserve the articles in good condition.

The above provision was added as an amendment to the definition of the term "imported directly" to expand the definition to allow for articles to qualify for GSP treatment under the GSP which: (1) originate in a beneficiary developing country, (2) are shipped to a developed country and auctioned there, and (3) then are shipped to the U.S. See T.D. 83-144 (June 28, 1983). The specific factual situation which led to the creation of the amendment to the "imported directly" definition was designed specifically to encompass the traditional marketing procedure established for "Cameroon wrapper tobacco." Cameroon wrapper was produced in Cameroon and the Central African Republic. It was sold at an auction held once a year in Paris. The Cameroon wrapper was shipped from the beneficiary countries to a French customs bonded transit warehouse in Le Havre until the Paris auction was completed, at which time the tobacco was reloaded for shipment to its final destination. Because the purchase of the wrapper tobacco occurred after it left the beneficiary country, the bill of lading covering the first leg of the journey only indicated the intermediate destination, and did not show the U.S. as the final destination. While in the transit warehouse, the wrapper tobacco was not subjected to any processing or other operations. Customs found that the Cameroon wrapper tobacco which had been exported from the Cameroon Republic and the Central African Republic to France, auctioned there, and then reexported to the U.S. satisfied the GSP "imported directly" requirement, and thus, the amendment to the "imported directly" definition was created.

We are of the opinion that the facts in the instant case are analogous to the facts in the "Cameroon wrapper tobacco" case described above. You state that the goods in this case are produced in Indonesia and are classified in a GSP-eligible provision, and satisfy the GSP "product of" and 35% value-content requirements. The goods are shipped from Indonesia to Dubai, U.A.E., where they are warehoused, and remain under the control of the customs authority while in the warehouse and during that time the goods are sold to the importer. You state that a certificate of origin is available at the time the merchandise is shipped to Dubai. However, we are assuming in this case that the certificate does not indicate the U.S. as the final destination. You also state that the goods do not enter into the commerce of the intermediate country other than for sale other than at retail. After the sale, the goods will be shipped directly from Dubai to the U.S. As in the Cameroon tobacco case, in the instant case, the sale of the goods to the importer in Dubai will not defeat the requirement that the importation result from the original commercial transaction between the importer and producer or the latter's sales agent. Thus, provided that the goods remain under the customs authority of the intermediate country (U.A.E.) during the time that the goods are warehoused, and provided that while in the transit warehouse, the merchandise is not subjected to any processing or other operations, the merchandise will be considered to have been "imported directly" from a BDC to the U.S.

Pursuant to T.D. 92-6, dated January 17, 1992 (57 Fed. Reg. 2018), section 10.175 was amended by new subsection 10.175(e), which provides the following additional definition of "imported directly":

(e)(1) Shipment to the U.S. from a beneficiary developing country which is a member of an association of countries treated as one country under section 502(a)(3), Trade Act of 1974, as amended (19 U.S.C. 2462(a)(3)), through the territory of a former beneficiary country whose designation as a member of the same association for GSP purposes was terminated by the President pursuant to section 504, Trade Act of 1974, as amended (19 U.S.C. 2464), provided:

(i) The articles in the shipment did not enter into the commerce of the former beneficiary developing country except for purposes of performing one or more of the operations specified in paragraph (c)(1) of this section and except for purposes of purchase or resale, other than at retail, for export.

Singapore is no longer a BDC since it was terminated as a member of the Association of South East Asian Nations (ASEAN) for GSP purposes. Subsection 10.175(e) was designed to remedy those situations where GSP duty-free treatment was being denied for articles produced in any remaining GSP-eligible ASEAN member country and shipped to Singapore or Brunei Darussalam where unpacking, testing, labeling, repacking or other minimal operations were being performed on such articles prior to final shipment to the U.S. 57 Fed. Reg. 2018.

We are of the opinion that shipping the merchandise from Indonesia to a warehouse in Singapore pending sale of the merchandise to an importer is specifically provided for in 19 CFR 10.175(e)(1)(i). Therefore, provided that the merchandise does not enter into the commerce of Singapore in any way other than for sale of the merchandise (and to perform one of the operations specified in 19 CFR 10.175(c)(i)), the "imported directly" requirement will be satisfied in this scenario.

HOLDING:

Under the first scenario, we find that, provided that the goods remain under the customs authority of the intermediate country (U.A.E.) during the time that the goods are warehoused, and provided that while in the transit warehouse, the merchandise does not enter into the commerce of the intermediate country except for sale other than at retail, the merchandise will be considered to have been "imported directly" from Indonesia into the U.S.

Furthermore, under the second scenario, we find that, provided that the merchandise does not enter into the commerce of Singapore in any way except for sale of the merchandise other than at retail (and to perform one of the operations specified in 19 CFR 10.175(c)(i)), the merchandise will be considered to have been "imported directly" from Indonesia into the U.S.

Sincerely,

John Durant, Director
Commercial Rulings Division