CLA-2 CO:R:C:T 950906 PR
District Director of Customs
United States Customs Service
10 Causeway Street
Boston, MA 02222-1052
RE: Request for Further Review of Protest 0401-91-100373; Dated
May 30, 1991, Concerning the Classification and Country of
Origin of Dehaired Cashmere
Dear Sir:
This ruling is on the protest filed against your decision in
the reliquidations on March 1, 1991, of two entries of cashmere
fibers. Our decision on the matter follows.
FACTS:
Raw cashmere fibers from Cashmere goats in Afghanistan were
shipped to Belgium where they were scoured and disinfected. The
cashmere was then sent to the United Kingdom where it underwent
a "dehairing" process--the separation of fine down fibers from
the coarse strong fibers. The fine down cashmere fibers were
then shipped to the United States.
ISSUE:
The entries covering the subject merchandise were liquidated
under the provision for carded or combed fine animal hair, in
subheading 5105.30.0000, Harmonized Tariff Schedule of the United
States Annotated (HTSUSA). The merchandise was considered to be
a product of Afghanistan. The 1991 rate of duty applicable to
products of Afghanistan classifiable in 5105.30.0000 was 81.6
cents per kilogram plus 20 percent ad valorem. The importer
believes that the merchandise is a product of the United Kingdom,
classifiable under the provision for cashmere, not carded or
combed, in subheading 5102.10.4000, HTSUSA. Thus, both the
classification and country of origin are in issue. LAW AND ANALYSIS:
Country of Origin
Section 12.130, Customs Regulations (19 CFR 12.130)
provides, in pertinent part, as follows:
(b) Country of origin. For the purpose of this section
* * * a textile or textile product, subject to section
204, Agricultural Act of 1956, as amended, imported
into the customs territory of the United States shall
be a product of a particular foreign territory or
country, or insular possession of the U.S., if it is
wholly the growth, product, or manufacture of that
foreign territory or country, or insular possession.
However, * * * a textile or textile product, subject
to section 204, which consists of materials produced or
derived from, or processed in, more than one foreign
territory or country, or insular possession of the
U.S., shall be a product of that foreign territory or
country, or insular possession where it last underwent
a substantial transformation. A textile or textile
product will be considered to have undergone a
substantial transformation if it has been transformed
by means of substantial manufacturing or processing
operations into a new and different article of
commerce.
* * *
The importer's position is that the imported merchandise
underwent a substantial transformation in Belgium and a second
substantial transformation in the United Kingdom.
We do not agree that the processing operations in either
Belgium or the United Kingdom constituted a substantial
transformation of the merchandise, changing the country of origin
of the cashmere from Afghanistan to Belgium or to the United
Kingdom.
Raw cashmere fibers were sent from Afghanistan to Belgium.
Clean cashmere fibers were then sent from Belgium to the United
Kingdom. The protestant has presented a large amount of material
to show that scouring cashmere fibers is a time consuming,
expensive, technical process. While that may be true, it appears
to be no more so than the dyeing and/or printing of fabric, which
is not considered to result in a substantial transformation
without other major processing. As in the case of dyeing and/or
printing of fabric, the processing does not essentially change
the product. The fibers enter the scouring process with
impurities and exit the process with those impurities removed. In simple terms, dirty fibers were imported into Belgium and
clean fibers were exported out of Belgium. However involved it
may be, scouring is merely a cleaning process and is not
sufficient to result in a substantial transformation of the
merchandise.
After being scoured and disinfected in Belgium, a mixture of
clean coarse and fine cashmere fibers was exported to the United
Kingdom. The processing in the United Kingdom consisted of
separating the two types of fibers and exporting the fine
cashmere fibers to the United States. Again, while the
processing may be technical and complex, it appears that it was
merely a sorting operation and did not result in a substantial
transformation of that merchandise.
The importer's representative has also submitted
documentation to support its assertion "that scouring and
dehairing of cashmere has historically been considered a
substantial enough process for the processing country to be the
country of origin."
The data submitted by the protestant shows that substantial
amounts of scoured cashmere with the country of origin indicated
to be Belgium were imported into the United States in each of the
years 1981 through 1991. In addition, the submitted data shows
that no scoured cashmere was exported from Afghanistan to the
United States during the years 1981 to 1984. However, in 1985,
the year that the final version of 12.130 went into effect, and
each year thereafter, significant quantities of scoured cashmere
were exported from Afghanistan to the United States. While a
percentage of cashmere fibers processed scoured and disinfected
in Belgium and dehaired in the United Kingdom may have
erroneously entered this country from 1985 to the present as
products of those countries, we are not aware of any basis which
would require Customs to extend that erroneous treatment to all
such merchandise.
Classification
Imported goods are classifiable according to the General
Rules of Interpretation (GRI's) of the Harmonized Tariff Schedule
of the United States (HTSUSA). GRI 1 provides that for legal
purposes, classification shall be determined according to the
terms of the headings in the tariff and according to any
pertinent section or chapter notes. It appears that GRI 1
governs the classification of the subject merchandise.
The term "fine animal hair" is defined in Chapter 51, Note
1(b), HTSUSA, as meaning the hair of, among other animals, the
Cashmere or similar goats. Therefore, the instant merchandise is
within the purview of the term "fine animal hair." The primary difference between Customs' classification of
the merchandise and the classification advocated by the importer
is whether the cashmere fibers have been carded or combed. This
is a question of fact. Both our National Import Specialist and
the importer's representative have submitted the following
information which was obtained from the Wool Handbook, W. Von
Bergen, Vol. One, 3d edition, 1963, at pages 361 and 362.
In its raw state commercial cashmere is an unsightly,
dirty mixture of the fine undercoat and the coarse
outercoat fibers. Dehairing refers to the process
which has as its main purpose the separation or removal
of the coarse stiff beard hairs from the fine cashmere
fibers * * *
The mechanical details of the dehairing process used by
the various dehairers are very well guarded. In a
modified English combing process the hair is removed by
carding and combing on circular combs, ending up with
cashmere noils nearly free of hair. It must be pointed
out that in normal worsted combing the noils are the
by-product of the top, whereas in the cashmere combing
the noils represent the valuable end product * * *
The various patents reveal that the dehairing is
accomplished by a modified carding process, employing
breaking, cutting, blowing and suction devices * * *
Carding is defined in Fairchild's Dictionary of Textiles,
edited by Dr. Isabel B. Wingate, 1967 edition, at page 104, as:
Preliminary process in spun yarn manufacture. The
fibers are separated, distributed and equalized, and
formed into a thin web and condensed into a continuous,
untwisted strand of fibers called a sliver. This
process removes most of the impurities and a certain
amount of short, broken or immature fibers.
Similarly, The Modern Textile and Apparel Dictionary, George
E. Linton, Fourth edition, 1973, at page 80, defines carding:
The process in yarn manufacture in which the fibers
are brushed up, made more or less parallel, have
considerable portions of foreign matter removed, and
are put into a manageable form known as sliver. This
approximates the size of a man's thumb in diameter.
On the other hand, noil is defined in The Modern Textile and
Apparel Dictionary, op.cit. supra, at page 392:
The short fibers taken from any machine operation in
the processing of textile fibers. They are obtained
mostly in carding and combing operations. Fairchild's Dictionary of Textiles, op. cit. supra, at page
138, states that combing is a "step subsequent to the carding
process." It is a process which "separates the long, choice,
desirable fibers of the same length from the nep and short,
immature undesirable stock that is called noil."
Thus, it appears that dehaired cashmere fibers (the
equivalent of noils) are not the carded or combed fibers.
Rather, those fibers have been removed from the carded or combed
fibers during dehairing, which, in the absence of evidence to the
contrary, we assume is a type of carding or combing operation. It
is our view that in order to be classifiable as "carded or
combed", the fibers must be in a sliver or a similar form.
The submitted sample is a mass of unaligned, unoriented
fibers. In view of the above, we conclude that the imported
cashmere fibers, although resulting from a carding or combing
process, have not themselves been carded or combed and,
therefore, are not classifiable in subheading 5105.30.0000.
The protest claims that the fibers should be classified in
subheading 5102.10.4000, HTSUSA, which provides for cashmere hair
not carded or combed and not processed in any manner beyond the
degreased or carbonized condition. Because the cashmere fibers
have undergone sterilization and dehairing processes subsequent
to scouring, they cannot be classified in 5102.10.4000.
HOLDING:
The merchandise is properly classifiable under the provision
for other fine animal hair not carded or combed, in subheading
5102.10.9000, HTSUSA, with duty, as a product of Afghanistan, at
the rate of 81.6 cents per kilogram plus 20 percent ad valorem.
Since this rate of duty is the same as the liquidated rate, you
are instructed to deny the protest in full. A copy of this
ruling should be attached to the Customs Form 19, Notice of
Action, which is furnished to the protestant.
Sincerely,
John Durant, Director
Commercial Rulings Division