CLA-2 CO:R:C:S 557144 WAW

District Director
U.S. Customs Service
6269 Ace Industrial Drive
P.O. Box 37260
Milwaukee, WI 53237-0260

RE: Application for Further Review of Protest No. 3701-92- 100083; applicability of a partial duty exemption to fabric which is embossed abroad and returned to the U.S.

Dear Sir:

This is in reference to the above-referenced protest which was forwarded to this office for further review. The protestant, Krueger International, contests the denial of the partial duty exemption available under subheading 9802.00.50, Harmonized Tariff Schedule of the United States (HTSUS), for fabric which is exported to Italy for embossing and returned to the U.S.

FACTS:

The protestant, also known as Pallas Textiles, produces upholstered office chairs and room dividers. At the direction of a designer based in New York, the company purchases upholstery fabric from sources located in Ireland, Great Britain, Germany, and Italy. The protestant imports approximately fifty percent of the fabric it stocks, while the remaining fifty percent is purchased domestically. Of the imported fabric, seventy-five percent is not intended to be used on the furniture the protestant produces, but rather, is to be resold to competing U.S. office furniture makers. The remaining twenty-five percent is consumed in protestant's own production process.

The merchandise the subject of this protest is upholstery fabric, referred to as style "Kathin," from Italy. Protestant stated that when the fabric was initially imported into the U.S., it did not sell well in the U.S. market. Consequently, the fabric was returned to Italy to undergo an "embossing" procedure. Embossing is a heat/plastics application that changes the surface texture of the fabric as well as the design. Protestant decided to emboss the fabric to enhance the marketability and characteristics of the fabric for prospective buyers.

ISSUE:

Whether the embossed fabric qualifies for the partial duty exemption available under subheading 9802.00.50, HTSUS, when returned to the U.S.

LAW AND ANALYSIS:

Articles returned to the U.S. after having been exported to be advanced in value or improved in condition by repairs or alterations may qualify for the partial duty exemption under subheading 9802.00.50, HTSUS, provided the foreign operation does not destroy the identity of the exported articles or create new or different articles through a process of manufacture. However, entitlement to this tariff treatment is precluded where the exported articles are incomplete for their intended use prior to the foreign processing, Guardian Industries Corp. v. United States, 3 CIT 9 (1982), or where the foreign operation constitutes an intermediate processing operation, which is performed as a matter of course in the preparation or the manufacture of finished articles. Dolliff & Company, Inc. v. United States, C.D. 4755, 81 Cust. Ct. 1, 455 F. Supp. 618 (1978), aff'd, C.A.D. 1225, 66 CCPA 77, 599 F.2d 1015 (1979). Articles entitled to this partial duty exemption are dutiable only upon the cost or value of the foreign repairs or alterations when returned to the U.S., provided the documentary requirements of 19 CFR 10.8 are satisfied.

In the above-referenced Dolliff case, certain dacron polyester fabrics--greige goods--were exported and subjected to multiple processing operations abroad, including dyeing. 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 another alterations case, C.J. Tower & Sons of Niagara, Inc. v. United States, C.D. 2208, 45 Cust. Ct. 111 (1960), cotton drills--also greige goods--were exported and subjected to multiple operations, including dyeing. The cotton cloth that was returned to the U.S. was similarly denied the partial duty exemption for alterations abroad 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, texture, and suppleness as a result of 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 another alterations case which dealt with the redyeing of fabric, the court held that the foreign processing constituted an acceptable alteration. See Amity Fabrics, Inc. v. United States, C.D. 2l04, 43 Cust. Ct. 64, 305 F. Supp. 4 (1959). In Amity Fabrics, unmarketable, pumpkin-colored cotton twill-back velveteen was exported to be redyed a black color. The court determined that the dying operation was a change which rendered the fabric marketable and that this improved its condition commercially, and found that such change constituted an alteration under the statute and Customs Regulations. As the parties had stipulated that the redyeing in no way changed the quality, texture, or character of the material, the court concluded that the identity of the goods was not lost or destroyed by the dyeing process; no new article was created; there was no change in the character, quality, texture, or use of the merchandise; it was merely changed in color.

In Royal Bead Novelty Co. v. United States, C.D. 4353, 68 Cust. Ct. 154, 342 F. Supp. 1394 (1972), uncoated glass beads were exported so that they could be half-coated with an Aurora Borealis finish which imparted a rainbow-like luster to the half-coated beads. The court found that the identity of the beads was not lost or destroyed in the coating process and that no new article was created. Moreover, there was no change in the beads' size, shape, or manner of use in the making of jewelry (as the plaintiff testified that both uncoated and half-coated beads were used interchangeably). The sole change was in the finish, which did not change the quality, texture, or character of the exported beads. Accordingly, the court concluded that application of the Aurora Borealis finish constituted an alteration within the intendment of item 806.20, Tariff Schedules of the United States (TSUS) (the precursor tariff provision to subheading 9802.00.50, HTSUS).

In Headquarters Ruling Letter (HRL) 555124 dated November 11, 1988, we considered a brushing operation performed on fabric used in the making of women's raincoats and found that while the brushing process imparted a slightly different appearance to the fabric, it did not appear to significantly change the quality, texture or character of the fabric. Accordingly, we held that the brushing operation constituted an "alteration" for purposes of subheading 9802.00.50, HTSUS.

Additionally, in HRL 554945 dated June 14, 1988, we held that the process of "crushing" fabric abroad constituted an "alteration" within the meaning of item 806.20, TSUS. In HRL 554945, fabric was exported to France where it was subjected to a processing operation designed to impart a permanent "crushed" or wrinkled look to the fabric, before being returned to the U.S. for use in producing women's swimsuits. We held that the identity of the fabric was not lost or destroyed by the "crushing" operation and this process did not result in the creation of a new and different commercial article. The "crushing" process also did not appear to result in any significant change in the quality, texture, or character of the fabric.

In the present case, we believe that the operations performed on the fabric in Italy, like the operations in Amity, Royal Bead, and HRL 555124 and 554945, constitute acceptable alterations of the fabric for purposes of subheading 9802.00.50, HTSUS. The record before us indicates that the fabric exported to Italy is suitable for its intended use (upholstery of furniture) in its condition as exported, and, in fact, is so used. Protestant claimed that the sole purpose for embossing the fabric was to enhance its marketability; without the embossing the fabric did not sell well in the U.S. market. Therefore, we are persuaded that the embossing of the fabric does not constitute an intermediate processing operation performed as a matter of course in the preparation or the manufacture of the finished fabric.

Moreover, as in Amity, we believe that the application of the plastic material onto the fabric in no way affects the quality, character or performance characteristics of the fabric; the embossing simply renders the fabric more marketable; it does not change the durability or strength of the fabric. The information and sample submitted indicate that, as was the case with respect to the beads in Royal Bead, the embossing operation does not destroy the identity of the exported article or create a new or different article of commerce. Although the embossing procedure slightly changes the texture and appearance of the fabric, it does not significantly alter the quality or character of the merchandise. Accordingly, we find that the embossing operation constitutes an acceptable "alteration" within the meaning of subheading 9802.00.50, HTSUS.

Your office advises that, although the protestant claimed that the reworking cost $1.00 per yard, no correspondence or documentary evidence has been provided to substantiate this claim. Absent evidence of the cost of the alteration, your office believes that no partial duty exemption can be allowed for the returned embossed fabric.

By letter dated May 11, 1993 (copy enclosed), protestant provided additional information directly to this office indicating that the foreign processing cost $2.10 per yard (or $2.30 per meter). Assuming that your office is satisfied that this represents a reasonable cost or value of the embossing operation, this amount should be used to determine the protestant's duty liaibility under subheading 9802.00.50, HTSUS, for the returned fabric.

HOLDING:

Based on the information provided, we are of the opinion that the process of "embossing" the subject fabric in Italy constitutes an "alteration," as that term is used in subheading 9802.00.50, HTSUS, and the returned fabric should be subject to duty only upon the value of the foreign alterations. Therefore, assuming that your office is satisfied that the processing cost information provided to us by the protestant ($2.10 per yard) represents a reasonable value for the foreign embossing, then this amount may be used to determine the amount of duties due.

Based on the foregoing discussion, this protest should be disposed of as set forth above. A copy of this decision should be attached to the Custom Form 19 and mailed to the protestant as part of the notice of action on the protest.

Sincerely,

John Durant, Director
Commercial Rulings Division

Enclosure