Applicability of HTSUS subheadings 9801.00.10 and 9802.00.50 to steel tubing; cut to length; country of origin marking; Canada; 19 CFR Part 102

HQ 558912 March 17, 1995 CLA-2 CO:R:C:S 558912 MLR CATEGORY: Classification TARIFF NO.: 9802.00.50 Ms. Ann Williams A.N. Deringer, Inc. 173 W. Service Road Champlain, NY 12919 RE: Applicability of HTSUS subheadings 9801.00.10 and 9802.00.50 to steel tubing; cut to length; country of origin marking; Canada; 19 CFR Part 102 Dear Ms. Williams: This is in response to your letter of October 11, 1994, to U.S. Customs, Champlain, New York, requesting a ruling regarding the applicability of subheadings 9801.00.10 and 9802.00.50, Harmonized Tariff Schedule of the United States (HTSUS), to steel tubing. FACTS: You state that several Canadian steel service centers purchase steel tubing from various suppliers, including U.S. manufacturers. Upon receiving orders from U.S. customers, the tubing of U.S. origin is cut to the ordered lengths and shipped to the U.S. ISSUES: I. Whether the U.S.-origin cut steel tubing is eligible for subheading 9801.00.10, HTSUS, treatment when returned to the U.S. II. Whether the Canadian cutting operation qualifies as an alteration, thereby allowing the cut steel tubing to be eligible for the partial duty exemption under subheading 9802.00.50, HTSUS, when returned to the U.S. III. Whether the steel tubing must be marked with its country of origin. LAW AND ANALYSIS: I. Subheading 9801.00.10, HTSUS Subheading 9801.00.10, HTSUS, provides for the free entry of products of the U.S. that have been exported and returned without having been advanced in value or improved in condition by any process of manufacture or other means while abroad, provided the documentary requirements of section 10.1, Customs Regulations (19 CFR 10.1), are met. See 59 Fed. Reg. 25563 (May 17, 1994), for recent amendments to 19 CFR 10.1 (copy enclosed). While some change in the condition of the product while it is abroad is permissible, 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. Border Brokerage Company, Inc. v. United States, 314 F. Supp. 788 (1970), appeal dismissed, 58 CCPA 165 (1970). Customs has previously stated that cutting exported merchandise to length generally advances its value or improves its condition. See Headquarters Ruling Letter (HRL)555174 dated April 25, 1989 (decorative banners cut to shorter lengths for retail sale were more marketable than rolls of banners in 140-foot lengths; consequently, this change in the banners' marketability constituted an improvement in the merchandise's condition, thereby precluding the duty exemption available under HTSUS subheading 9801.00.10); and HRL 554179 dated September 10, 1986 (ribbon exported to Mexico to be cut to length, rewound onto spools and wrapped in plastic packaging was not eligible for item 800.00, Tariff Schedules of the United States (TSUS) (now 9801.00.10, HTSUS), treatment as the cutting to shorter lengths improved the condition of the ribbon by making it ready for sale upon return to the U.S. Similarly, in this case, we find that cutting the steel tubing to length improves its condition. Therefore, it will not qualify for subheading 9801.00.10, HTSUS, treatment when it is returned to the U.S. II. Subheading 9802.00.50, HTSUS Subheading 9802.00.50, HTSUS, provides 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 repairs or alterations. Such articles returned from Canada are dutiable only upon the cost or value of the foreign repairs or alterations, provided the documentary requirements of section 181.64, Customs Regulations (19 CFR 181.64) are satisfied. However, entitlement to this tariff treatment is precluded in circumstances where the operations performed abroad destroy the identity of the exported articles or create new or commercially different articles. See A.F. Burstrom v. United States, 44 CCPA 27, C.A.D. 631 (1956), aff'g C.D. 1752, 36 Cust. Ct. 46 (1956); Guardian Industries Corp. v. United States, 3 CIT 9 (1982). Tariff treatment under subheading 9802.00.50, HTSUS, is also precluded where the exported articles are incomplete for their intended purpose prior to the foreign processing and the foreign processing operation is a necessary step in the preparation or manufacture of finished articles. Guardian; Dolliff & Company, Inc. v. United States, 455 F. Supp. 618 (CIT 1978), aff'd, 599 F.2d 1015 (Fed. Cir. 1979). We have previously ruled that, under certain circumstances, the cutting of merchandise from a long material length to a shorter material length without manufacturing a finished good can be considered an alteration within the meaning of subheading 9802.00.50, HTSUS. In HRL 555534 dated September 24, 1985, Customs reconsidered the cutting of reinforcing steel bars (rebars). Originally, it was determined that rebars exported in material lengths in order to produce finished cut-to-size lengths, ready for whatever further use was contemplated for such cut lengths, were not eligible for item 806.20, Tariff Schedules of the United States (TSUS) (now subheading 9802.00.50, HTSUS), treatment. Upon reconsideration, it was determined that, after cutting 20 and 40 foot standard lengths from rebars ranging in length from 50 to 300 feet, end rebars of various, non-standard lengths, referred to as "random lengths," were left over. Although some of the random lengths were sold directly to U.S. customers from the manufacturing plant, others were exported to Mexico and cut to shorter lengths, ranging from one to 14 feet. It was held that this cutting-to-length operation constituted an "alteration" of the rebars within the meaning of item 806.20, TSUS. See also HRL 555411 dated August 11, 1989 (cutting exported wire into shorter lengths and winding it onto spools or tying it into coils constituted an alteration under subheading 9802.00.50, HTSUS; and HRL 555782 dated April 22, 1991, (U.S.-manufactured fabric shipped to Canada in rolls, where it was cut into shorter lengths and re-rolled constituted an acceptable alteration). However, in situations where rolls of material-length merchandise are exported, and finished goods are returned merely by cutting to length, this cutting constitutes a finishing step in the manufacture of the goods, and exceeds the meaning of the term "alterations." See HRL 555174 dated April 25, 1989 (decorative banners, bearing repetitive holiday greetings, cut at a right angle, were incomplete products as they were unsuitable for their intended use in the continuous lengths in which they were exported); HRL 555343 dated May 30, 1989 (jumbo rolls of multistrike coated film 34 inches in width and 20,000 feet long slit into ribbon material for use in plastic cartridges for data processing machines constituted an intermediate step in the manufacture of the computer tape which is essential to render it suitable for its intended use); and HRL 555766 dated April 2, 1991 (fabric coated with acrylic and cut into 3 1/2 inch strips for vertical blinds was not complete for its intended use but required cutting for use as vertical blinds). Based upon the cases cited above, it appears that the main distinction between acceptable and unacceptable alterations when articles are cut-to-length is whether the cutting process is a necessary step in the production or preparation of an article for its particular purpose. For example, in HRL 555782, the fabric cut into shorter lengths and re-rolled remained fabric, whereas in HRL 555766 the cut fabric became vertical blind strips. In this case, the steel tubing is cut into shorter lengths as needed by a particular customer. It is our opinion that this is more analogous to the cases involving cutting rope, fabric, or rebars to shorter lengths. The steel tubing remains steel tubing; it is only cut to shorter lengths. Consequently, it is our opinion that the cutting operation performed in Canada constitutes an acceptable alteration within the meaning of subheading 9802.00.50, HTSUS. III. Country of Origin Marking In regard to country of origin marking, since the good at issue is subjected to processing in the territories of NAFTA parties, it will be subject to the country of origin marking rules set out in the interim amendments to the Customs Regulations (19 CFR Part 102). The interim amendments to the Customs Regulations were published as T.D. 94-4 (59 Fed. Reg. 109, January 3, 1994) with corrections (59 Fed. Reg. 5082, February 3, 1994) and T.D. 94-1 (59 Fed. Reg. 69460, December 30, 1993). These interim amendments took effect on January 1, 1994, to coincide with the effective date of the NAFTA. Section 102.11(a) of the Interim Rules provides that the country of origin of a good is the country in which: (1) the good is wholly obtained or produced; (2) the good is produced exclusively from domestic materials; or (3) each foreign material incorporated in that good undergoes an applicable change in tariff classification set out in section 102.20, and satisfies any other applicable requirements of that section, and all other applicable requirements of these rules are satisfied. Section 134.32(r), Customs Regulations {19 CFR 134.32(r)}, provides an exception from marking for articles determined to be of U.S. origin under part 102 prior to exportation from the U.S., when such articles are exported for repairs or alterations and returned. Accordingly, if the tubing exported to Canada is a product of the U.S. under the NAFTA marking rules, the steel tubing returned to the U.S. will not be required to be marked, pursuant to 19 CFR 134.32(r), because they are merely exported to Canada for alterations. HOLDING: On the basis of the information submitted, the steel tubing is not eligible for duty-free treatment under subheading 9801.00.10, HTSUS, because the cutting operation improves its condition. However, since the steel tubing is only cut to shorter lengths, it is our opinion that this constitutes an acceptable alteration within the meaning of subheading 9802.00.50, HTSUS. Accordingly, if the tubing exported to Canada is a product of the U.S. under the NAFTA marking rules, the steel tubing returned to the U.S. will not be required to be marked, pursuant to 19 CFR 134.32(r), because they are merely exported to Canada for alterations. A copy of this ruling letter should be attached to the entry documents filed at the time the goods are entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the Customs officer handling the transaction. Sincerely, John Durant, Director Commercial Rulings Division