CLA-2  CO:R:C:V  555246 GRV
TARIFF NO:  9802.00.50, HTSUS (formerly 806.20, TSUS)
          District Director of Customs
          300 South Ferry Street
          Terminal Island
          San Pedro, CA  90731
          RE:  Internal Advice 47/88 - Applicability of HTSUS subheading
               9802.00.50 to, and the country of origin of, cracked raw
               green pistachio nuts imported from Hong Kong
          Dear Sir:
               This is in response to your memorandum of September 12,
          1988, requesting advice concerning the applicability of HTSUS
          subheading 9802.00.50, Harmonized Tariff Schedule of the United
          States (HTSUS), to, and the country of origin of, cracked raw
          green pistachio nuts imported from Hong Kong.
          FACTS:
               You state that raw pistachio nuts of U.S. origin are
          exported to Hong Kong for cracking and then returned to the U.S.
          The importer enters these raw pistachio nuts under both TSUS
          items 145.26 and 806.20 and claims Hong Kong as the country of
          origin; the cracking substantially transforming the exported U.S.
          merchandise for country of origin purposes.  You claim that the
          country of origin remains the U.S., as cracking does not sub-
          stantially transform the raw pistachio nuts, and that because the
          exported article is an unfinished product, it is ineligible for
          TSUS item 806.20 tariff treatment when returned to the U.S.
          ISSUES:
          I.   Whether the returned article is eligible for the partial
          duty exemption under HTSUS subheading 9802.00.50.
          II.  Whether the foreign cracking operation constitutes a
          substantial transformation of the article (raw pistachio nuts)
          for country of origin purposes.
          LAW & ANALYSIS:
          I. HTSUS Subheading 9802.00.50 eligibility
               Effective January 1, 1989, the HTSUS superseded and re-
placed the TSUS.  TSUS item 806.20 was carried over into the
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          HTSUS as subheadings 9802.00.40 (repairs or alterations made
          pursuant to a warranty) and 9802.00.50 (other repairs or altera-
          tions).  These tariff provisions provide a partial duty exemption
          for articles returned to the U.S. after having been exported to
          be advanced in value or improved in condition by means of repairs
          or alterations.  Under these tariff provisions, there is a duty
          only upon the value of the foreign repairs or alterations, pro-
          vided the documentation requirements of section 10.8, Customs
          Regulations (19 CFR 10.8), are met.
               In Dolliff & Company, Inc., v. United States, 66 CCPA 77,
          C.A.D. 1225, 599 F.2d 1015, 1019 (1979), the court stated that:
               ... repairs and alterations are made to completed articles
               and do not include intermediate processing operations which
               are performed as a matter of course in the preparation or
               the manufacture of finished articles.  (Court's emphasis).
          Thus, "the focus is upon whether the exported article is
          'incomplete' or 'unsuitable for its intended use' prior to the
          foreign processing."  Guardian Industries Corp. v. United States,
          3 CIT 9 (1982), at page 13.
               In Headquarters Ruling Letter 554834 (May 25, 1988), U.S.
          grown pecan pieces were exported to Mexico for removal of the nut
          meat from the shell.  In that case we determined that the foreign
          shelling process was not a repair or alteration operation, as the
          pecan pieces that were shipped to Mexico were incomplete for
          their intended use and required a further step in the preparation
          of the finished nut meat product.  Accordingly, we denied the
          partial duty exemption available under TSUS item 806.20 to the
          returned pecan nut meat.  See also, Headquarters Ruling Letter
          071174 (February 22, 1983), wherein the foreign shelling of
          domestic pecan nuts was found to exceed an alteration.
          II.  Country of Origin
               Section 304 of the Tariff Act of 1930, as amended (19 U.S.C.
          1304) provides, in general, that all articles of foreign origin
          imported into the U.S. shall be legibly and conspicuously marked
          to indicate the country of origin to an ultimate purchaser in the
          U.S.  U.S. products exported and returned are specifically
          excepted from country of origin marking requirements under
          section 134.32(m), Customs Regulations (19 CFR 134.32(m)).  In
          applying this section, Customs has ruled that products of the
          U.S. which are exported for further processing and subsequently
          returned, are generally not subject to country of origin marking
          upon importation into the U.S., unless the further processing in
          the foreign country constituted a substantial transformation of
          the product.  See, e.g., C.S.D. 80-15; C.S.D. 79-443.
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               In defining what constitutes a substantial transformation,
          Customs has held that a new and different article of commerce
          having a new name, character and use must emerge from the
          processing.  See, United States v. Gibson-Thomsen Co., Inc., 27
          CCPA 267, C.A.D. 98 (1940).
               In T.D. 85-158, 19 Cust. Bull. 360 (October 15, 1985),
          Customs determined that roasting, salting and coloring pistachio
          nuts, without more, does not result in a substantial
          transformation.  Customs reasoned that the roasting, salting and
          coloring processes were simple operations which did not change
          the character or identity of the pistachio nuts.  Customs further
          found that since no commercial use exists for green pistachio
          nuts, these steps constituted necessary processing to which all
          pistachio nuts are subjected and that it did not alter or limit
          the intended or potential commercial use of the nuts.  Similarly,
          in the case at hand, we find that the cracking process, like the
          roasting and coloring processes, does not change the fundamental
          character of the nut or result in a new and different article of
          commerce.  In fact, like the roasting and coloring, it is a
          necessary step to which all pistachio nuts, intended for any
          commercial use, are subjected.  Therefore, the nuts remain
          products of the U.S. and are not subject to the requirements of
          the marking statute, 19 U.S.C. 1304.
          HOLDING:
               On the basis of the information presented, raw green in-
          shell pistachio nuts exported for cracking operations are
          incomplete for their intended use as exported and, therefore,
          are ineligible for the partial duty exemption available under
          HTSUS subheading 9802.00.50 upon their return to the U.S.
          However, the foreign cracking operation does not result in the
          substantial transformation of the pistachio nuts for country of
          origin marking purposes.
                                      Sincerely,
John Durant, Director
                                      Commercial Rulings Division