CLA-2 RR:TC:SM 559648 DEC
Port Director
477 Michigan Ave.
Detroit, Michigan 48226
RE: Application for Further Review of Protest No. 3801-4-104073;
applicability of a
partial duty exemption to baking pans coated abroad and
returned to the U.S.;
HRL 558869; HRL 556992; HRL 557024; HRL 554192; HRL 555078;
HRL 553657
Dear Sir:
This is in reference to your memorandum postmarked January
16, 1996, forwarding a Protest and Application for Further Review
filed timely by Ameri-Can Customshouse Brokers, Incorporated,
which contests your denial of the partial duty exemption under
subheading 9802.00.50, Harmonized Tariff Schedule of the United
States (HTSUS), to certain baking pans.
FACTS:
This protest concerns hamburger baking pans that are shipped
from the United States to DuraShield in Canada so that a special
coating may be applied and then returned to the United States.
In Canada, DuraShield removes the existing, traditional bakery
silicon release coating by means of heating and sandblasting.
DuraShield then replaces the coating with their proprietary,
superior, long-life, non-stick coating. Your office disallowed
classification under subheading 9802.00.50, HTSUS, contending
that the coating process is a further manufacturing process since
the pans that are subjected to the coating process are unused.
ISSUE:
Does the coating process that is performed in Canada on the
baking pans as described above constitute an alteration pursuant
to subheading 9802.00.50, HTSUS, thereby entitling the baking
pans to a partial duty exemption under this subheading?
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. from Canada, provided the documentary
requirements of 19 CFR 181.64 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 Amity Fabrics, Inc. v. United States, C.D. 2l04, 43 Cust.
Ct. 64, 305 F. Supp. 4 (1959), 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 meaning 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) 558869, dated March 8,
1995, we determined that digital voice terminals that were
originally manufactured in the United States for sale in the
United Kingdom, but never sold, were entitled to the partial duty
exemption under subheading 9802.00.50, HTSUS, for operations
relating to the replacement of a certain chip programmed to meet
the United States requirements rather than the United Kingdom's
specifications.
In HRL 556992, dated May 7, 1993, Customs considered whether
notebook computers with a monochrome video display that were to
be sent abroad to have the monochrome display replaced with a
color display feature would be eligible for subheading
9802.00.50, HTSUS, treatment. The upgraded unit would retain all
of the original capabilities of the exported unit, i.e., the
ability to store programs, to be freely programmed, to perform
computations, and to execute a program requiring logical
decision. In that case, we found that the computer in its
exported condition was complete for its intended use as an
"automatic data processing machine." It could be
used for this purpose without exercising the option to upgrade
the unit. There was no change in the identity of the computer as
a result of the upgrade and no new article was created.
Accordingly, we found that the upgrade was an alteration within
the meaning of subheading 9802.00.50, HTSUS.
In HRL 557024, dated June 30, 1993, Customs determined that
a U.S.-origin host computer sent to Canada to be modified by the
addition of a Canadian-produced board set was an alteration.
This alteration increased the data processing speed of the
computer to enable it to handle the complex software.
In HRL 554192, dated September 5, 1986, we held that
treating shakes and shingles with fire retardant chemicals in
Canada qualified as an alteration eligible for purposes of
806.20, TSUS, because the products were completed articles ready
for their intended use, were regularly so used in their untreated
condition, and appeared to be preferred over the more expensive
treated product by the vast majority of customers. We also
stated that they did not lose their identity in the
fire-retardant process.
As in HRL 558869, HRL 556992, HRL 557024, and HRL 554192, we
find that the baking pans in their exported condition are
complete for their intended use as baking pans, and that the
processing abroad does not serve to change the identity or the
character of the exported articles. No new and different article
of commerce is created as a result of the processing abroad.
Rather, the exported baking pans merely undergo an operation to
equip them with the ability to function more effectively.
Accordingly, we find that the processing abroad constitute
alterations within the meaning of subheading 9802.00.50, HTSUS.
You cite to HRL 555078, dated March 27, 1989, in support of
your position that the baking pans at issue are not entitled to
classification under subheading 9802.00.50, HTSUS. In that
ruling letter, we concluded that the clamp brackets at issue
which were sent abroad to be cleaned, coated, rinsed, heated and
painted to be a necessary part of the manufacturing process.
Accordingly, we concluded that these operations were not
alterations. We reached a similar determination in HRL 553657,
dated December 11, 1985, which addressed a coating operation of
certain welding tips coated with aluminum. A change in quality
of an article resulting from further processing is not
necessarily indicative that a particular operation constitutes a
non-qualifying operation. In this case, the baking pans are
completely manufactured articles prior to exportation for the
replacement coating operation. The fact that they may or may not
have actually been used prior to exportation is irrelevant under
these circumstances.
HOLDING:
On the basis of the information provided, we find that the
coating operation performed in Canada to the baking pans as
described above constitutes a qualifying alteration. Thus, the
returned baking pans are entitled to the partial duty exemption
under subheading 9802.00.50, HTSUS. Accordingly, the protest
should be granted.
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 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, Freedom of Information Act
and other public access channels.
Sincerely,
John Durant, Director
Tariff Classification Appeals
Division