CON-9-04-RR:IT:EC 226858 GOB

Mary A. LaValley
Angel L. Cooper
A.N. Deringer, Inc.
173 W. Service Road
Champlain, New York 12919

RE: Temporary importation bond; subheading 9813.00.05, HTSUS; Repair; Alteration; Processing; 19 CFR 181.53(b)(5); Sizing and dyeing.

Dear Ms. LaValley and Ms. Cooper:

This is in response to your letters of March 28, 1996 and May 7, 1996 on behalf of Fersten Headwear ("Fersten").

FACTS:

In your letter of March 28, 1996, you state as follows:

We have been contacted by our client to obtain a binding ruling regarding whether or not sizing and dyeing of hat bodies is considered a change in condition in connection with the NAFTA Duty Deferral Program.

With your March 28, 1996 letter, you submitted a handwritten letter of March 26, 1996 from Fersten to you. That letter states:

...the bodies are shipped into the USA - They are only sized (which only stiffens the body) and dyed different colours - then returns [sic] to Canada still as a straw body and once in Canada we manufacture these bodies into many different straw hats. (Emphasis in original.)

In response to our request for additional information, with your May 7, 1996 letter you submitted a letter to you dated April 25, 1996 from St. Louis Dyeing and

Processing Co. ("St. Louis"), which performs the sizing and dyeing for Fersten. In its letter, St. Louis states:

The unfinished hat bodies are received nested and compressed into bales containing 25 dozen each. I have enclosed 1 hat body just as it is received by us. There are 3 distinct processes needed to present our customer with a hat body that he may press out into the desired shape and decorate accordingly. Process #1: The hat bodies are folded and placed into a bleach vat to be bleached lightly in order to facilitate their acceptance of the dyes used. They are finished and sent to -- Process #2: The hat bodies are placed in "cages" and lowered into the dye vats and dyed and finished into the proper colors. They are then dryed on a conveyor dryer and inspected for any flaws or color discrepancies. After inspection they are sent to -- Process #3: The hat bodies are again folded and dunked into a water borne sizing (stiffening agent) and sent through another conveyor dryer to be stacked and boxed up ready to be shipped to our customers in Canada or the U.S. You do not identify which duty-deferral provision your request relates to. We assume that it relates to subheading 9813.00.05, HTSUS.

ISSUES:

1. May the hat bodies be entered under subheading 9813.00.05, HTSUS?

2. Is 19 CFR 181.53(b)(5) applicable to the factual situation described supra?

LAW AND ANALYSIS:

Issue One

Pursuant to General Note 1, Harmonized Tariff Schedule of the United States ("HTSUS"), all merchandise imported into the United States is subject to duty unless specifically exempted therefrom.

Subheading 9813.00.05, HTSUS, provides for the temporary duty-free entry of:

Articles to be repaired, altered, or processed (including processes which result in articles manufactured or produced in the United States.)

Pursuant to U.S. Notes 1(a) and (c) of Subchapter XIII of Chapter 98, HTSUS, which contains subheading 9813.00.05:

The articles described in the provisions of this subchapter, when not imported for sale or for sale on approval, may be admitted into the United States without the payment of duty, under bond for their exportation within 1 year from the date of importation, which period, in the discretion of the Secretary of the Treasury, may be extended, upon application, for one or more further periods which, when added to the initial 1 year, shall not exceed a total of 3 years ... ... For purposes of this subchapter, if an article imported into the United States under heading 9813.00.05 is withdrawn for exportation to the territory of Canada or Mexico, the duty assessed shall be waived or reduced in an amount that does not exceed the lesser of the total amount of duty payable on the article that would have been payable on importation under chapters 1 through 97, inclusive, of the Harmonized Tariff Schedule of the United States or the total amount of customs duties paid to Canada or to Mexico on the exported article, unless such article is covered by section 203(a)(1) through 203(a)(8), inclusive, of the NAFTA Implementation Act. The amount of duties or refunds calculated on such articles pursuant to this note shall be adjusted to take into account any subsequent claim for preferential tariff treatment made to another NAFTA country. This note shall apply to shipments to Canada on or after January 1, 1996, and to Mexico on or after January 1, 2001.

At issue are the applicability of subheading 9813.00.05, HTSUS, and 19 CFR 181.53(b)(5) to the factual situation described by the ruling requester on behalf of Fersten.

Webster's Third New International Dictionary (unabridged, 1966) defines the verb "process" as follows, in pertinent part:

process ... 1 a : to proceed against by law...2 : to subject to a particular method, system, or technique of preparation, handling, or other treatment designed to effect a particular result : put through a special process: as a (1) : to prepare for market, manufacture, or other commercial use by subjecting to some process ... (2) to make usable by special treatment ...

We believe that the dyeing and sizing of the hat bodies, as described supra, clearly falls within the second definition of "process," supra.

In Ruling 224661 dated January 11, 1994, which pertained to subheading 9813.00.05, we stated that "[t]he processing can be a relatively minor procedure or extensive enough to be considered a manufacture or production."

In other rulings involving subheading 9813.00.05, we have held the following to be a "processing": a melting procedure (Ruling 223003 dated October 15, 1991, citing DB 200149 dated May 13, 1963, where we held a freezing procedure to be a processing); the cutting and sewing of airline seat covers (Ruling 222106 dated March 27, 1990); embroidery (Ruling 223640 dated March 2, 1992); and the trimming of coils to reduce their width and the cutting of edges to certain tolerances (Ruling 224283 dated March 17, 1993). Based upon the above authorities, we determine that the hat bodies may be entered under subheading 9813.00.05 because they are processed within the meaning of subheading 9813.00.05.

Please note, however, that if the hat bodies are not exported, they are not eligible for treatment under subheading 9813.00.05. See U.S. Note 1(a) of Subchapter XIII of Chapter 98, HTSUS, excerpted supra. In this regard, we note that the letter of April 25, 1996 from St. Louis, excerpted supra, states that, after the processing, the hat bodies are "stacked and boxed up ready to be shipped to our customers in Canada or the U.S." (Emphasis supplied.)

Please note U.S. Note 2(b) of Subchapter XIII of Chapter 98, HTSUS, which states:

2. Merchandise may be admitted into the United States under heading 9813.00.50 only on condition that: * * * * * (b) If any processing of such merchandise results in an article (other than an article described in (a) of this U.S. Note) manufactured or produced in the United States:

(i) A complete accounting will be made to the Customs Service for all articles, wastes and irrecoverable losses resulting from such processing; and

(ii) All articles and valuable wastes resulting from such processing will be exported or destroyed under customs supervision within the bonded period; except that in lieu of the exportation or destruction of valuable waste, duties may be tendered on such wastes at rates of duties in effect for such wastes at the time of importation.

Issue Two

19 CFR 181.53(b)(5), promulgated by Treasury Decision 96-14 (published in the Customs Bulletin and Decisions on February 14, 1996 at p.6), provides:

(5) Temporary importation under bond. Except in the case of a good imported from Canada or Mexico for repair or alteration, where a good, regardless of its origin, was imported temporarily free of duty for repair, alteration or processing (subheading 9813.00.05, Harmonized Tariff Schedule of the United States) and is subsequently exported to Canada or Mexico, duty shall be assessed on the good on the basis of its condition at the time of its importation into the United States. Such duty shall be paid no later than 60 calendar days after either the date of exportation or the date of entry into a duty-deferral program of Canada or Mexico, except that, upon filing of a proper claim under paragraph (a)(3) of this section, the duty shall be waived or reduced in an amount that does not exceed the lesser of the total amount of duty payable on the good under this section or the total amount of customs duties paid to Canada or Mexico.

A different question is presented with respect to the applicability of 19 CFR 181.53(b)(5). In particular, in addition to being a "processing," is the subject operation a "repair or alteration," such that the "except" clause at the beginning of section 181.53(b)(5) would apply to take the operation out of section 181.53(b)(5)?

Webster's Third New International Dictionary (unabridged, 1966) defines "repair" as follows, in pertinent part:

repair ... 1 a: to restore by replacing a part or putting together what is torn or broken: fix, mend ... b: to restore to a sound or healthy state: renew, revivify...

It is clear that the work performed is not a repair of the hat bodies at issue. There is no restoration, replacement, renewal, or the like to the hat bodies.

Webster's Third New International Dictionary (unabridged, 1966) defines "alteration" and "alter" as follows, in pertinent part:

alteration ... 1 a: the act or action of altering b: the quality or state of being altered 2: the result of altering...

alter ... 1: to cause to become different in some particular characteristic (as measure, dimension, course, arrangement, or inclination) without changing into something else ... syn see change

The Random House Dictionary of the English Language (The Unabridged Edition, 1973) defines "alteration" and "alter" as follows, in pertinent part:

alteration ... 1. the act or state of altering: or the state of being altered ... 2. a change; modification ...

alter ... 1. to make different in some particular, as size, style, course, or the like; modify ... 3. to change; become different or modified.

19 CFR 181.64(a) provides in pertinent part as follows:

181.64 Goods re-entered after repair or alteration in Canada or Mexico.

(a) General. This section sets forth the rules which apply for purposes of obtaining duty-free or reduced-duty treatment on goods returned after repair or alteration in Canada or Mexico as provided for in subheadings 9802.00.40 and 9802.00.50, HTSUS...For purposes of this section, "repairs or alterations" means restoration, addition, renovation, redyeing, cleaning, resterilizing, or other treatment which does not destroy the essential characteristics of, or create a new or commercially different good from, the good exported from the United States.

The matter at issue here does not involve subheadings 9802.00.40 or 9802.00.50, and thus the definition in section 181.63(a) is not controlling here. Nevertheless, we believe that the above definition is instructive. We believe that the work performed in this case would not fall within the definition of "repairs or alterations" in 19 CFR 181.64(a). While the definition, supra, includes "redyeing" and the matter here involves "dyeing," the matter here involves much more than dyeing. Further, redyeing denotes that the article has been dyed previously, which is not the case here.

In Ruling 557443 dated October 14, 1993, which involved subheading 9802.00.50, HTSUS (a partial duty exemption for articles returned to the United States after having been exported to be advanced in value or improved in condition by repairs or alterations), we stated:

Tariff treatment under subheading 9802.00.50, HTSUS, is also precluded where the exported articles are incomplete for their intended purpose prior to the foreign processing. Guardian [Guardian Industries Corp. v. United States, 3 CIT 9 (1982)]; Dolliff & Company, Inc. v. United States, 455 F. Supp. 618 (CIT 1978), aff'd, 599 F.2d 1015 (Fed. Cir. 1979).

In Dolliff, supra, certain dacron polyester fabric goods were subjected to multiple operations abroad, including dyeing, heat-setting, chemical-scouring and treating with chemicals. The finished fabric that was returned to the U.S. was denied the partial duty exemption for alterations abroad because it was determined that the dyeing and numerous other processing steps were all necessarily undertaken to produce the finished fabric.

In an earlier alterations case, C.J. Tower & Sons of Niagara, Inc. v. United States, C.D. 2208, 45 Cust. Ct. 111 (1960), cotton drills were exported and subjected to stretching, dyeing, and sizing operations. The cotton cloth that was returned to the U.S. was similarly denied the partial duty exemption under item 806.20, Tariff Schedules of the United States (TSUS) (now subheading 9802.00.50, HTSUS), because it was determined that the merchandise exported was changed in color, width, length, porosity, in the distribution of the threads in the weave, in weight, tensile strength, and suppleness by the foreign processing. In holding that the foreign processing constituted more than an alteration, the court found that the returned merchandise was a new and different article, having materially different characteristics and a more limited and specialized use.

In general, texturizing changes the dimensions of the yarn and may make it softer or give it greater elasticity...Customs has long held that texturizing operations exceed the meaning of the term alteration for the purposes of item 806.20, TSUS. See DB 474.5 dated February 24, 1964, which held that the texturizing process that gave the yarn twist and resulted in greater elasticity exceeded an alteration; TC 511.4 dated July 30, 1963; and SP 511.1 dated June 11, 1968. Therefore, in the instant case, we find that texturizing the yarn in Finland exceeds an alteration because it is a step in the manufacture of finished yarn. Accordingly, the texturized yarn will not be entitled to a partial duty exemption under subheading 9802.00.50, HTSUS, upon importation into the U.S. (Emphasis supplied.) On the basis of the authorities noted supra, we conclude that the work described in this case is not an "alteration." The sizing and dyeing of the hat bodies "exceeds an alteration." The hat bodies were incomplete for their intended use prior to the processing. The excerpt from Ruling 557443, supra, and the authorities cited therein, are very instructive on this issue. For example, while the sizing and dyeing of the hat bodies is not identical to the texturizing in Ruling 557443, the two processes appear to be somewhat comparable. Similarly, the processes described in Dolliff and C.J. Tower & Sons, supra, appear to be somewhat comparable to the sizing and dyeing at issue here.

Accordingly, we determine that the work is not a "repair or alteration," as these words are used in 19 CFR 181.53(b)(5).

Thus, the except clause at the beginning of 19 CFR 181.53(b)(5) is not applicable, and 19 CFR 181.53(b)(5) applies to the factual situation at issue here.

We note that the hat bodies are "goods subject to NAFTA drawback" within the meaning of 19 U.S.C. 3333(a) because they are not exported to a NAFTA country in the same condition as when imported into the United States within the meaning of 19 U.S.C. 3333(a)(2).

HOLDINGS:

1. If they are exported, the hat bodies may be entered under subheading 9813.00.05, HTSUS.

2. The work at issue is not a "repair or alteration," as these words are used in 19 CFR 181.53(b)(5). Thus, the except clause at the beginning of 19 CFR 181.53(b)(5) is not applicable, and 19 CFR 181.53(b)(5) applies to the factual situation at issue here. The hat bodies are "goods subject to NAFTA drawback" within the meaning of 19 U.S.C. 3333(a) because they are not exported to a NAFTA country in the same condition as when imported into the United States within the meaning of 19 U.S.C. 3333(a)(2).

Sincerely,

Director,
International Trade Compliance
Division