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HQ 559621




March 18, 1997

MAR 2-10 RR:TC:SM 559621 KBR

CATEGORY: CLASSIFICATION

Port Director
U.S. Customs Service
200 St. Paul Place
Baltimore, MD 21202

RE: Application for Further Review of Protest No. 1303-94-100334 Concerning the Eligibility of Magnesium for Duty-free Treatment Under the Generalized System of Preferences ("GSP"); Imported Directly; 19 CFR ?10,175(b)

Dear Sir:

This is in reference to the above-cited Application for Further Review and Protest filed by J.P. Reynolds Co., Inc., on behalf of their client JBA Metals International contesting the denial of eligibility of magnesium for duty-free treatment under the Generalized System of Preferences ("GSP").

FACTS:

JBA Metals International ("JBA") is protesting a denial of eligibility of magnesium for duty-free treatment under the GSP. The Certificate of Origin,
Form A, indicates that the magnesium was shipped by AluminProdukt, Ltd. from the Russian Federation to ALPRO Aluminum Products, Ltd. ("ALPRO") of Cyprus, under contract number 643/26119649/30039-12, dated June 12, 1993. JBA, by contract dated March 4, 1994, purchased the magnesium from ALPRO. The commercial invoice confirming the sale of the magnesium from ALPRO to JBA is dated March 11, 1994. The contract specifies that the magnesium shall be of Russian origin. The commercial invoice states that the terms of delivery are "In Warehouse Rotterdam, duty unpaid". In a conversation with this office on March 11, 1997, the president of JBA indicated that ALPRO was an independent intermediary buyer of the magnesium from Russia, and not acting as an agent of the Russian producer. The shipper of the magnesium from Rotterdam, Netherlands to Baltimore, MD was Albatros Shipping & Transport B.V. Albatros issued a certification dated September 29, 1994, which stated that the warehouse in Rotterdam where the magnesium was stored was a bonded warehouse and that the magnesium was held under bond and no duties were paid on the magnesium. The record also contains a Customs certificate dated September 21, 1994, and signed by the Inspector of Customs at Rotterdam, which stated that the magnesium had arrived there from Estonia and was to be shipped to the U.S. The magnesium was denied duty-free treatment under the GSP by your office and was found to be dutiable at 8 percent ad valorem.

A timely Application for Further Review of the Protest was filed on October 28, 1994.

ISSUE:

Whether the magnesium from Russia was "imported directly" for purposes of the GSP when it was shipped through an intermediary country to the U.S. as described above.

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)(1). The phrase "imported directly" is defined in section 10.175 of the Customs Regulations (19 CFR 10.175). At the time of the subject entry, the magnesium was classified in a GSP-eligible provision, subheading 8104.11.0000, HTSUS, and both Russia and Estonia were BDC's.

The primary issue in this case concerns whether the magnesium from Russia was "imported directly" from a BDC to the U.S., when it was shipped through Rotterdam, Netherlands, and subsequently entered into the U.S. Section 10.175, Customs Regulations (19 CFR 10.175) defines the term "imported directly" for purposes of the GSP. Under 19 CFR 10.175(b), merchandise shipped from a BDC through another country to the U.S. is "imported directly" if the merchandise does not enter into the commerce of any other country while en route to the U.S., and the invoices, bills of lading, and other shipping documents show the U.S. as the final destination.

In this instance, the invoice and certain other shipping documents do not show the U.S. as the final destination. Therefore, the magnesium does not meet the requirements of 19 CFR 10.175(b). See HQ 555039 (June 16, 1989), HQ 557640 (January 5, 1994).

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 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. See HQ 557921 (July 27, 1994); HQ 557937 (September 29, 1994); HQ 556373 (January 17, 1992).

The facts in the instant case are distinguished, however, in that here, ALPRO was not acting as the agent of the Russian producer as required by 10.175(d)(2). ALPRO was an independent intermediary buyer and, as a result, the magnesium was not "imported directly," as required under the GSP.

HOLDING:

Based on the information submitted, we find that the magnesium shipped from Russia through Rotterdam, Netherlands, before importation into the U.S., did not satisfy the "imported directly" requirement under 19 CFR ?10.175(d) because the sale to the importer was not made by the Russian producer of the magnesium or their agent, but by an independent intermediary buyer. Therefore, the protest should be denied. A copy of this decision should be attached to Customs Form 19, to be sent to the protestant.

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 attached to Customs Form 19, Notice of Action, and be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry 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 Rulings 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
Tariff Classification Appeals Division

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