CLA-2 CO:R:C:S 558893 WAS
Area Director of Customs
New York Seaport
6 World Trade Center
New York, New York 10048
RE: Application for Further Review of Protest No. 1001-85-014873; applicability of
items 806.20, TSUS, and 800.00,TSUS, to Kematal Acetal Resin; alteration;
advancement in value; improvement in condition
Dear Sir:
This is in reference to your memorandum dated November 1, 1994, concerning the
Application for Further Review of Protest No. 1001-85-014873, which was forwarded to our
office for a decision on whether a partial duty exemption under item 806.20, Tariff Schedules of
the United States (TSUS) (the precursor to subheading 9802.00.50, Harmonized Tariff Schedule
of the United States (HTSUS), is available. In the alternative, protestant claims that the
merchandise should be eligible for duty-free treatment under item 800.0035, TSUS, (the
precursor to subheading 9801.00.10, HTSUS).
FACTS:
The protest, which was filed by Leading Forwarders, Inc.. on behalf of Celanese Corp. on
November 18, 1985, contests the denial of the partial duty exemption under item 806.20, TSUS
(the precursor to subheading 9802.00.50, HTSUS), to Kematal Acetal Resin which was subject to
a change in color in the United Kingdom, prior to being returned to the U.S.
The merchandise which is the subject of this protest is referred to as
"Kematal Acetal Resin" (M90-04) which was manufactured in the U.S. by the protestant. This
substance is a raw material from which plastic articles are molded. The resin in pellet form is
shipped to the United Kingdom where the resin is processed so that it changes to a black color.
The acetal resin is put through a machine and subjected to a vigorous mixing process which
results in the fluxing of the plastics material and the blending of the plastics material with the
pigment. The original material is changed in form from pellets to an amorphous shape and then to
a smooth mixture of pigmented material. After this process, the batch of smooth pigmented
material is put through a machine, subjected to an extrusion process, and then made into rods.
Finally, the rods are ground into the appropriate pellet size.
Protestant claims that the processes performed in the United Kingdom merely change the
color of the plastic resin pellets from its virgin color to a black color. Protestant further contends
that the product which was shipped to the United Kingdom was a finished article which was
complete for its intended purpose. Moreover, protestant claims that the addition of carbon black
to the product does not change its physical or chemical properties in any way.
ISSUES:
(1) Whether the returned acetal resin is eligible for the partial duty exemption available
under item 806.20, TSUS.
(2) In the alternative, whether the returned acetal resin is eligible for duty-free treatment
under item 800.00, TSUS.
LAW AND ANALYSIS:
I. Applicability of Item 806.20, TSUS
Item 806.20, TSUS, provides for the assessment of duty on the value of repairs or
alterations performed on articles returned to the U.S. after having been exported for that purpose.
However, the application of this tariff provision is precluded in circumstances where the
operations performed abroad destroy the identity of the articles or create new or commercially
different articles. See A.F. Burstrom v. United States, 44 CCPA 27, C.A.D. 631 (1957);
Guardian Industries Corporation v. United States, 3 CIT 9 (1982). Treatment under subheading
9802.00.50, HTSUS, is also precluded where the exported articles are incomplete for their
intended use and the foreign processing operation is a necessary step in the preparation or
manufacture of finished articles. Dolliff and Company, Inc. v. United States, 66 CCPA 77,
C.A.D. 1225, 599 F.2d 1015 (1979).
In Amity Fabrics, Inc. v. United States, 43 Cust. Ct. 64, C.D. 2104, 305 F. Supp. 4
(1959), unmarketable pumpkin-colored cotton twill-back velveteen was exported to be redyed a
black color. The court found that the merchandise was advanced in value and improved in
condition commercially by the dyeing operation and that such change constituted an alteration.
The court further found 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."
However, in Headquarters Ruling Letter (HRL) 048150 dated December 21, 1976,
pelletized polyethylene material was sent to Canada for coloring with exported U.S.-origin
pigments, and the finished product was then returned to the U.S. The foreign processes consisted
of blending the plastic pellets with the pigments, processing through an extruder, cooling, dicing
back into pellet form, packaging, and returning to the U.S. In HRL 048150, Customs found that
the foreign processing of the exported palletized material resulted in a new and different product
which exceeded the scope of an acceptable repair or alteration within the meaning of item 806.20,
TSUS. Customs stated that the product which was exported to Canada was commercially
different from the product that was returned to the U.S. Accordingly, the polyethylene pellets
were precluded from receiving the partial duty exemption under item 806.20, TSUS, upon return
to the U.S.
We are of the opinion that the facts in the instant case are closely analogous to HRL
048150. As in HRL 048150, we find that the processing operations performed on the acetal
resin, which involve fluxing, mixing, extruding and grinding, do not constitute an acceptable
alteration, within the meaning of item 806.20, TSUS. The operations performed on the acetal
resin result in the creation of a new and different commercial article. Therefore, the returned
colored acetal resin pellets are not eligible for the partial duty exemption available under item
806.20, TSUS.
II. Applicability of Item 800.00, TSUS
Item 800.00, TSUS, provides for the free entry of U.S. products that are exported and
returned without having been advanced in value or improved in condition by any means while
abroad, provided the documentary requirements of section 10.1, Customs Regulations (19 CFR
10.1), are met. While some change in the condition of the product is permissible abroad,
operations which either advance the value or improve the condition of the exported product
render it ineligible for duty-free entry upon return to the U.S. See Border Brokerage Company v.
United States, 65 Cust Ct. 50, C.D. 4052, 314 F. Supp. 788 (1970), appeal dismissed, 57 CCPA
165 (1970).
In regard to the instant case, we are of the opinion that the process of changing the color
of plastic resins by means of mixing, fluxing, extruding, grinding and pelletizing, clearly advances
the value and improves the condition of the exported U.S.-origin resin pellets. The product which
was returned to the U.S. is a new and different commercial article from the article which was
exported to the United Kingdom. Therefore, the returned acetal resin is not eligible for duty-free
treatment under item 800.00, TSUS.
HOLDING:
On the basis of the information presented, it is our opinion that the fluxing, mixing,
extruding and grinding operations which are performed in the United Kingdom to the exported
acetal resin do not constitute "alterations," within the meaning of item 806.20, TSUS. Therefore,
the returned Kematal acetal resin pellets are not entitled to the partial duty exemption available
under this tariff provision, but are dutiable upon their full value.
In addition, the processing operations performed abroad to the acetal resin pellets
constitutes an advancement in value and improvement in condition, and therefore, the returned
merchandise is not eligible for duty-free treatment under item 800.00, TSUS.
The protest should be denied in full. A copy of this decision should be attached to the
Form 19 to be returned 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 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 to the
public via the Diskette Subscription Service, the Freedom of Information Act and other public
access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division