CLA-2 CO:R:C:S 557207 BLS

District Director of Customs
San Ysidro, California 92073

RE: Application for Further Review of Protest No. 2501-92- 100112; GSP; 35% value-content requirement

Dear Sir/Madame:

This is in reference to a memorandum dated March 22, 1993, from the Office of Entry Control, forwarding Protest No. 2501-92- 100112, filed by Romano, Fernandez & McNally Co., Inc., on behalf of Clayton Manufacturing. Protestant claims that the subject merchandise, certain generators and parts imported from Mexico, is eligible for duty-free treatment under the Generalized System of Preferences (GSP).

FACTS:

The protest covers four shipments entered in June, 1992. These entries were liquidated on September 25, 1992, October 2, 1992 and October 9, 1992, and the protest was timely filed on December 14, 1992. In support of GSP eligibility, more particularly the 35% value-content requirement, protestant submitted on August 18, 1992, certain supporting cost data. The concerned import specialist believes the submitted information was not sufficient to support such claim, specifically that adequate financial statements were not included, nor other such documentation, and that, in addition, overhead expenses were only estimated, i.e., quantified on an annual basis. Additional documentation in support of the 35% value-content requirement, labeled "Cost Submissions And Supporting Detail- FY 1992", dated July 30, 1993, has since been submitted.

ISSUE:

Whether the imported merchandise satisfies the 35% value- content requirement under the GSP, for purposes of determining whether the imported articles are eligible for duty-free treatment under the statute.

LAW AND ANALYSIS:

Under the GSP, eligible articles the growth, product or manufacture of a designated beneficiary developing country (BDC)

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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 processing operations in the BDC, is equivalent to at least 35 percent of the appraised value of the article at the time of entry. See, 19 U.S.C. 2463(b).

Mexico is a designated BDC. See, General Note 3(c)(ii)(A), Harmonized Tariff Schedule of the United States (HTSUS). The merchandise was entered and classified under subheading 8402.90.00909, HTSUS, "Steam or other vapor generating boilers, Parts, Other," a GSP eligible provision. From a description of the articles, we have no reason to believe that the import specialist's determination as to classification was incorrect. Therefore, the imported merchandise will receive duty-free treatment if it is considered to be a "product of" Mexico and the 35 percent value- content requirement is satisfied. Merchandise is considered the "product of" a BDC if it is either wholly the growth, product or manufacture of a BDC or has been substantially transformed there into a new or different article of commerce. 19 U.S.C. 2463(b)(2). In this regard, the import specialist has orally advised that, in her opinion, the imported articles qualify as "products of" Mexico for purposes of the GSP. The record contains no information which would be inconsistent with this determination. Therefore, the merchandise will be eligible for GSP benefits if the 35% value- content requirement is satisfied.

The additional supporting documentation covers the imported generator parts, i.e., coils and burners, but contains no supporting cost information with respect to the dynamometers. The Mexican content, composed of materials, labor, and allowable overhead, is shown for each generator part, and in every case exceeds 35 percent. The concerned supervisory import specialist has reviewed the additional submission and agrees that the documentation supports protestant's claim, with respect to the generator parts, that the 35% value-content requirement has been satisfied.

HOLDING:

Protestant has established, through supporting documentation, that the imported generator parts satisfy the 35% value-content requirement under the GSP. Accordingly, these parts should be entered free of duty under that program. However, protestant has failed to support its burden of establishing, through appropriate documentation, that the imported dynamometer components meet the 35% value-content requirement. Therefore, these parts are not eligible for duty-free treatment under the GSP.

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The protest should be granted in part and denied in part in accordance with the foregoing. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office to the protestant attached to the Form 19, Notice of action, no later than 60 days from the date of this letter. Any reliquidation of the entries in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to customs personnel via the Customs Ruling Module in ACS and the public via the Diskette Subscription Service, Lexis, Freedom of Information Act and other public access channels.


Sincerely,

John Durant, Director
Commercial Rulings Division