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HQ 556345

February 10, 1992

CLA-2 CO:R:C:S 556345 SER

CATEGORY: CLASSIFICATION

Ms. Kendra Klippert
Trans American Customhouse Brokers
Suite 312
Peace Bridge Plaza
Buffalo, NY 14213

RE: Applicability of subheading 9802.00.60, HTSUSA, to copper rods from Canada; C.S.D. 84-49; HRL 555356, 556080, 554965

Dear Ms. Klippert:

This is in reference to your request of October 21, 1991, and further submission of January 30, 1992, on behalf of Alcatel Canada Wire (Alcatel), concerning the applicability of subheading 9802.00.60, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), to copper rod from Canada.

FACTS:

U.S.-origin copper cathodes are exported to Canada where they are melted in a furnace and passed through casting, rolling, and pickling stages in a continuous process. The resulting copper rod is then coiled, strapped onto pallets and shipped to electrical cable manufacturing plants in the U.S. In the U.S. the copper rod is drawn to a smaller diameter, stranded, and covered with insulation and protective armor or jacket. The final product is a conductor or communications cable, which is used in industrial and residential construction as well as power and communications utilities.

ISSUE:

Whether the copper rod will be eligible for the partial duty exemption available under subheading 9802.00.60, HTSUSA, when imported into the U.S.

LAW AND ANALYSIS:

Subheading 9802.00.60, HTSUSA, provides a partial duty exemption for:

[a]ny article of metal (as defined in U.S. note 3(d) of this subchapter) manufactured in the United States or subject to a process of manufacture in the United States, if exported for further processing, and if the exported article as processed outside the United States, or the article which results from the processing outside the United States, is returned to the United States for further processing.

This tariff provision imposes a dual "further processing" requirement on eligible articles of metal-- one foreign, and when returned, one domestic. Metal articles satisfying these statutory requirements may be classified under this tariff provision with duty only on the value of such processing performed outside of the U.S., provided there is compliance with the documentary requirements of section 10.9, Customs Regulations (19 CFR 10.9).

In C.S.D. 84-49, 18 Cust.Bull. 957 (1983) we stated that:

[f]or purposes of item 806.30, TSUS [precursor to 9802.00.60 HTSUSA], the term "further processing" has reference to processing that changes the shape of the metal or imparts new and different characteristics which become an integral part of the metal itself and which did not exist in the metal before processing; thus, further processing includes machining, grinding, drilling, threading, punching, forming, plating, and the like, but does not include painting or the mere assembly of finished parts by bolting, welding, etc.

In this case, the copper rod is an eligible article of metal for purposes of subheading 9802.00.60, HTSUSA. In addition, the processing of the copper cathodes in Canada clearly constitutes "further processing" under this tariff provision. In Headquarters Ruling Letter (HRL) 555356 dated December 26, 1989, Customs held that melting and rolling of aluminum constituted "further processing" for purposes of this program. In that ruling, as in this case, the processing operations clearly impart new and different characteristics which become an integral part of the metal itself and which did not exist in the metal before processing.

It next must be determined whether the domestic "further processing" requirement has been met. In this case, the domestic operations are to be conducted by firms who purchase the copper rod from Alcatel. These firms will then conduct operations on the copper rod in the form of drawing, stranding, and covering with insulation and a protective jacket. The end result is a finished conductor or communications cable which is used in industrial and residential construction as well as power and communications utilities.

There is no requirement under subheading 9802.00.60, HTSUSA, that the identity of the person who performs the "further processing" in the U.S. be known at the time the material is exported from the U.S, or at the time the returned material enters the U.S. There is also no requirement that the same person who exported the material, or the same person who imports the material must perform the "further processing" in the U.S. However, the importer should satisfy the district or area director of the actual performance of "further processing" in the U.S. See, 19 CFR 10.9, and Headquarters Ruling Letter (HRL) 556080 dated August 27, 1991.

In addition, the domestic "further processing" should be conducted within a reasonable time following importation. See, 19 CFR 10.9, and HRL 556080 dated August 27, 1991. In HRL 554965 dated September 6, 1989, Customs found that under the circumstances of that case, four months was a reasonable period of time to warehouse stainless steel sheets in the U.S. before being further processed.

Based on your description of the operations to be performed in the U.S. on the copper rod to create the conductor or communications cable, it is our opinion that the domestic "further processing" requirement would be satisfied. The drawing operation conducted on the imported copper rod in the manufacture of the finished conductor or communication cable would clearly would impart new and different characteristics which become an integral part of the metal itself. However, as previously stated, the district or area director must be satisfied of the actual performance of "further processing" in the U.S.

HOLDING:

On the basis of the information submitted, it is our opinion that the processes performed abroad on the exported copper cathodes constitute "further processing" as that term is used in subheading 9802.00.60, HTSUSA. In addition, the drawing operation to be performed in the U.S. on the imported copper rods also would constitute "further processing". However, since your company is not performing the operations in the U.S., the
district or area director must be satisfied of the actual performance of "further processing" in the U.S. Contingent on the satisfaction of the district or area director in this regard, the imported copper rods will be entitled to entry under subheading 9802.00.60, HTSUSA, with duty only on the cost or value of such processing performed outside the U.S., upon compliance with the documentary requirements of 19 CFR 10.9.

Sincerely,

John Durant, Director
Commercial Rulings Division

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