DOC

HQ 230890

By Troy Dixon,2014-10-15 13:04
8 views 0
HQ 230890

    HQ 230890

    June 3, 2005

DRA-4 RR:CR:DR 230890RDC

CATEGORY: Drawback

Edwin W. Van Ek, President,

    C.J. Holt & Co., Inc.

    466 Kinderkamack Road

    Oradell, NJ 07649-1529

    RE: E. I. du Pont de Nemours & Co.; Unused merchandise drawback; Commercial

    interchangeability; 19 C.F.R. ?191.32(c); 19 U.S.C. ?1313(j)(2); spandex ? elastane yarn. monofilament coalesced yarn; Lycra

Dear Mr. Van Ek:

     This is in response to your 2/25/2005 ruling request, on behalf of your client, E. I. du Pont de Nemours & Co. (Dupont), regarding the commercial interchangeability of imported and domestic spandex monofilament coalesced elastane yarn type 902C 100 ?decitex (dtex) or 90 denier, (trademark name “Lycra ”), for purposes of substitution,

    unused merchandise drawback under 19 U.S.C. ? 1313(j)(2). We received the additional information requested on May 2, 2005.

     This analysis should serve as a guideline and model for future determinations of ?commercial interchangeability for the other types of Lycra elastane yarn. Other ?domestic and imported types of Lycra elastane yarn meeting the same criteria

    discussed below, that is, having the same product specifications, the same unique type number, the same denier or dtex, the same tariff classification and relative values, when substituted on a type for type and denier for denier or dtex for dtex basis, should also be deemed "commercially interchangeable" for purposes of substitution, unused merchandise drawback per ? 1313(j)(2). Accordingly, a separate ruling on each type ?and denier of Lycra elastane yarn is unnecessary.

FACTS:

     Dupont states that it “imports and produces domestically to the same ?specification several types of Lycra elastane yarn which is a spandex monofilament

    coalesced yarn. Each polymer type has a specific chemical composition.” Our ?research reflects that Lycra” is the trademarked name for the spandex (elastane) fiber

     1

    that Dupont developed and manufactures. Spandex or elastane is a long-chain synthetic polymeric fiber and referred to as a non-cellulosic, i.e., an entirely chemically based fiber. Strands of continuous filament fibers are twisted together to form a continuous filament yarn and coalesced yarn consists of filaments stuck together. ? is a thin, long, continuous strand of two-way stretch spandex fiber. Lycra

     Specifically, Dupont requests a ruling as to the commercial interchangeability of ?“domestically produced Lycra spandex monofilament yarn type 902C 100 [d]tex ([or] ?90 [d]enier) and imported Lycra elastane monofilament yarn type 902C 100 [d]tex (90 [d]enier). The “C” in type 902C stands for “clear.” Type 902C 100 dtex (90 denier) ??Lycra will only be substituted for 902C 100 dtex (90 denier) Lycra. According to

    Dupont, “the type refers to a specific chemistry.” Decitex or dtex represents the weight

    in grams of 10,000 meters of yarn. Denier indicates the weight in grams of 9,000 ?meters of yarn. Dupont states that “[g]lobal production [of Lycra type 902C] conforms ?to” the specifications provided and that the buyers of Lycra type 902C will accept ?either the Lycra made in the U.S. or Lycra made outside the U.S. to fulfill an order for ?Lycra type 902C.

IMPORT ? As evidence of imported Lycra yarn type 902C, 90 denier, you have supplied the

    following.

    ; A printout of an entry summary filed via ABI (Automated Broker Interface), entry date 3/6/2000. This entry summary references “INV#A9200430” and reflects that 6,823 kilograms of “M/Filamnt,Syn.Elastomeric Yarn” was classified under subheading 5404.10.8005, HTSUS, and entered. The consignee is Dupont, Delaware. The exporting country is Switzerland and the country of origin is Great Britain. The value is declared.

    ; An invoice dated 2/4/2000, reflects Dupont order number “A92-00430” and

    “Customer Order Reference CRL3026, R-0110.” The sale was made by Dupont

    International S.A. (Dupont International), Switzerland, to Dupont, Delaware. The invoice is for 6,822.8 kilograms of “Lycra elastane yarn, type 902C 100 dtex Clear” which was shipped from The Netherlands to the U. S. The unit price and total price in U.S. dollars is stated.

    ; A packing list from Dupont International dated 2/3/2000, references “Dupont Order Number A9200430” and “Customer Order Number CRL3026” and “R-0110.” The list

    states that 6,822.8 kilograms of “Lycra elastane yarn, type 902C 100 dtex Clear” from The Netherlands was destined for Dupont in Virginia.

EXPORT ?As evidence of exported Lycra yarn type 902C, 100 dtex or 90 denier, you have

    provided:

    ; Invoice number “XT15-01083,” dated 1/15/2001, that shows 4,953.6 kilograms of

    “Lycra type 902C, spandex monofil coalesced 100 dtex 90 Den” was sold by Dupont to Dupont International and shipped to Dupont Nederland B.V. in The Netherlands. The price charged in U.S. dollars is stated and the invoice states, “goods are of USA origin.”

    The invoice reflects the supplier order number “LX-2989 Final P 01.”

     2

    ; The export packing list from Dupont states “supplier order partial number: LX2989 001.” This list references 4,953.6 kilograms of “Lycra type 902C, spandex monofil

    coalesced 100 dtex 90 Den.”

     Also provided is a document titled “Lycra spandex yarn product specification” which references “yarn type 902C.” This document lists 10 ingredients and their ? . For six of the ingredients the respective weights for the imported and exported Lycra?weights stated are identical for the imported and exported Lycra. For the fourth ?ingredient listed, there is a difference in the exported and imported Lycra of 7/1000.

    For the seventh and ninth ingredient, there is a difference of 2/1000.

ISSUE:

     ? Whether the imported and domestic Lycra elastane yarn, type 902C is

    commercially interchangeable for purposes of 19 U.S.C. ? 1313(j)(2) when substituted on a denier for denier or dtex for dtex basis?

LAW AND ANALYSIS:

     Substitution, unused merchandise drawback is provided by 19 U.S.C. ?1313(j)(2), but the statute does not define “commercially interchangeable.” The CBP Regulations reflect the legislative history that explained the change from fungibility to commercial interchangeability as the standard for substitution. Section 191.32 provides:

    In determining commercial interchangeability, Customs shall evaluate the

    critical properties of the substituted merchandise and in that evaluation

    factors to be considered include, but are not limited to, Governmental and

    recognized industrial standards, part numbers, tariff classification and

    value.

(19 C.F.R. ? 191.32(c)). In Texport Oil Co. v. United States, (185 F.3d 1291 (Fed. Cir.

    1999)) the Federal Circuit Court of Appeals (CAFC) discussed the meaning of “commercially interchangeable.” The CAFC concluded that commercially interchangeable is “an objective, market-based consideration of the primary purpose of

    the goods in question.” (Id.) The CAFC explained:

    Therefore, “commercially interchangeable” must be determined objectively

    from the perspective of a hypothetical reasonable competitor; if a

    reasonable competitor would accept either the imported or the exported

    good for its primary commercial purpose, then the goods are

    “commercially interchangeable” according to 19 U.S.C. ? 1313(j)(2).

(Id. at 1295). Thus, per the CAFC in Texport commercial interchangeability is

    determined using an “objective standard.” Accordingly, an exported good is commercially interchangeable with an imported good if a buyer, in an arms’-length

    transaction, would accept either good at the specified price for the purpose intended. In

     3

    order to determine if either good at the specified price for the purpose intended the relevant characteristics of the imported good with those characteristics of the specific exported good. Those pertinent characteristics include any governmental or industry standards applicable to the good, the tariff classification, part numbers if any, value, and any other important characteristics, for both the imported and exported good.

Governmental and Recognized Industry Standards

     Industry consensus standards ensure that all products meeting a standard are used in the same manner, regardless of manufacturer. Under normal circumstances, materials that meet the same industry accepted standard can be used to produce the same products or utilized for the same purposes. These uses are normally stated in the standard. There is a governmental standard established by the Federal Trade Commission (FTC) that a fiber must meet in order to be traded as generic “spandex.” According to the FTC regulations, spandex is “A manufactured fiber in which the fiber-

    forming substance is a long chain synthetic polymer comprised of at least 85 percent of ? is Dupont’s a segmented polyurethane.” (16 C.F.R. ? 303.7(k)). However, since Lycratrademarked name for its specific and proprietary formulations of spandex, there are no ?government or industry standards for Lycra.

Tariff Classification

     With respect to the tariff classification, according to the entry summary the ?imported type 902C Lycra yarn of 100 dtex or 90 denier is classified under subheading 5404.10.8005, HTSUS, which provides for “Synthetic monofilament of 67 decitex or

    more and of which no cross-sectional dimension exceeds 1mm; strip and the like (for example, artificial straw) of synthetic textile materials of an apparent width not exceeding 5 mm: monofilament: elastometric yarn.” According to the description of ?goods sold on the export invoice, “Lycra type 902C, spandex monofil coalesced 100

    dtex 90 Den,” such goods also would be classified under subheading 5404.10.8005, HTSUS. The tariff classification criterion, therefore, has been met.

Part Numbers

     Based on the provided documents, Dupont does not use part numbers when ??buying and selling Lycra. Lycra yarn is a bulk commodity and is not assigned a part

    number. It is used by textile manufacturers in combination with other fibers to produce ?yarns or fabrics. However, the evidence reflects that Lycra yarn is traded by specific

    types, e.g., 902C, and specific deniers. The import invoice and packing list refer to “Lycra elastane yarn, type 902C 100 dtex Clear” and the export invoice and packing list refer to “Lycra type 902C, spandex monofil coalesced 100 dtex 90 Den.” Consequently, ?there is evidence that Lycra is bought and sold according to type and dtex.

Relative Values

     Goods that are commercially interchangeable will have generally very similar values when sold at the same place, at the same time, to like buyers from like sellers. When the time or place of the sale or the buyers or sellers vary, goods that are commercially interchangeable may be traded for different prices. Accordingly, when

     4

    price paid and charged for purportedly commercially interchangeable goods are significantly different, it must be demonstrated that the difference is attributable to market forces or some circumstance other than a material difference between the imported and exported goods.

     ?, the import invoice is dated 2/7/2000 With regard to the instant type 902C Lycra

    and is for the sale of 6,823 kilograms. The export invoice is dated 1/15/2001 and is for ?4,953.6 kilograms. The exported type 902C Lycra was sold for 89 percent of the cost ?of the imported type 902C Lycra. Dupont explains the difference in price as a product of the region where the material was made and the time difference between the ?transactions. The imported Lycra was made in Great Britain; the exported was of U.S. origin. This explanation is plausible given that there are eleven months between the transactions and the countries of origin are different.

Product Specifications ? Dupont states that the imported and domestically produced Lycra are made to ?the same specifications and that each Lycra type “has a specific chemical ?composition.” Dupont also states that “[g]lobal production [of Lycra type 902C]

    conforms to” the chemical composition provided. Dupont provided the chemical ?compositions for the imported and exported Lycra spandex yarn type 902C. The ten

    ingredients and their respective weights for the imported and domestically produced ?Lycra type 902C are given. The weights for six of the ingredients are identical for the ?imported and exported Lycra. There are minimal differences between the imported ?and domestically produced Lycra in the remaining four ingredients. The CBP

    Laboratory and Scientific Services reviewed the specifications for type 902C and concluded that imported and domestic fibers meeting these specifications and of the same denier or dtex are the same commercial product.

Additional Relevant Factors

     The spandex monofilament yarn at issue is identified using a unique trademarked ?name, i.e., Lycra, that defines a specific kind of spandex monofilament yarn. Only ?Dupont manufactures Lycra. The use of this unique trade name to identify this specific kind of spandex monofilament yarn when coupled with a “type,” e.g., 902C, and a ?specific dtex or denier, indicates that material identified as “Lycra of a specific type

    and denier, whether produced domestically or outside the U.S. is the same material.

     After evaluating all the relevant criteria suggested by the legislative history and ?the additional relevant factors, we find that commercial interchangeability of Lycra ?902C 90 denier has been established because both the imported and domestic Lycra

    902C 90 denier (1) are classifiable under subheading 5404.10.8005, HTSUS, which provides for “Synthetic monofilament of 67 decitex or more and of which no cross-

    sectional dimension exceeds 1mm; strip and the like (for example, artificial straw) of synthetic textile materials of an apparent width not exceeding 5 mm: monofilament: elastometric yarn;” (2) have the same relative value; (3) have the same unique trade ?name, i.e., Lycra 902C 90 denier; (and 4) have essentially the same chemical composition.

     5

HOLDING:

     ? Based on the above determinations, we conclude that the imported and domestic Lycraspandex monofilament yarn type 902C 90 denier or 100 dtex are commercially interchangeable for purposes of the substitution, unused merchandise drawback law of 19 U.S.C. ?1313(j)(2).

    This decision is limited to the specific facts set forth herein. If the terms of the import or export contracts vary from the facts stipulated to herein, this decision shall not be binding on the Customs Service as provided in 19 C.F.R. ?177.2(b)(1), (2) and (4) and 177.9(b)(1) and (2).

     Sincerely,

     Myles B. Harmon, Director

     Commercial Rulings Division

     6

Report this document

For any questions or suggestions please email
cust-service@docsford.com