CLA-2 RR:TC:SM 559719 DEC
Tariff No.: 9801.00.10
Area Director of Customs
JFK Airport Area - Building 178
Jamaica, New York 11430
RE: Application for Further Review of Protest No. 1001-95-110602
concerning
denial of duty-free entry of automobile parts; Subheading
9801.00.10, HTSUS;
T.D. 94-47; 19 CFR 10.1; Mi-Scott International Ltd., v.
United States, 13 CIT
1046 (1989)
Dear Sir:
This is in reference to Protest No. 1001-95-110602 and the
Application for Further Review dated December 14, 1995, timely
submitted by Trans-Border Customs Services, Incorporated, on
behalf of Imperial Trading Limited contesting the denial of an
entry under subheading 9801.00.10, Harmonized Tariff Schedule of
the United States (HTSUS), to automobile parts.
FACTS:
The importer, Imperial Trading Limited, claims that the
articles that are the subject of this protest were purchased
abroad, but manufactured in the United States. The importer
further states that it was unable to obtain a manufacturer's
affidavit attesting to the claim of United States manufacture.
The importer requests that Customs rely on its statement that
since the articles are marked "Made in USA," as are the
containers, that we allow the merchandise to receive duty-free
treatment under subheading 9801.00.10, HTSUS, as United States
goods exported and returned without having been advanced in value
or improved in condition. In support of its request, the
importer has submitted descriptive literature about the articles
from the manufacturer, photocopies of the containers, and an
actual sample of the merchandise
which is marked "Made in USA." In addition, the importer
submitted a copy of a letter
from Innopex Limited signed by its president. No entry number,
date, or port is referenced in the letter. The body of the
letter does not provide any specific identifying language with
respect to the articles that are the subject of this protest.
The submitted invoicing documentation generally describes the
articles as 48,192 "auto parts." The information contained in
the invoices does not disclose the types of parts nor do the
invoices provide any information in support of the claim that the
articles are of United States origin.
ISSUE:
Whether the automobile parts are eligible for duty-free
treatment under subheading 9801.00.10, HTSUS.
LAW AND ANALYSIS:
Subheading 9801.00.10, HTSUS, provides for the free entry of
products of the United States 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 satisfied. 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). While an article that is marked
"Made in the USA" supports the assertion that the article is a
product of the United States, such marking alone is not a basis
upon which duty-free entry under subheading 9801.00.10, HTSUS,
may be granted. Customs also requires additional evidence that
supports a port director's ability to trace the exportation and
subsequent importation of the article as well as documentation
supporting the importer's claim that the article was not advanced
in value or improved in condition abroad.
Section 10.1(a) outlines the necessary documentation
required for duty-free entry under subheading 9801.00.10, HTSUS.
In order to eliminate procedural burdens and delays and
duplications of information collection, Customs removed and
revised certain paragraphs within section 10.1 to eliminate the
use of Customs Form 3311, Declaration for Free Entry of Returned
American Products, for purposes of duty-free treatment of
products of the United States which are returned without having
been advanced in value or improved in condition while abroad, as
provided in subheading 9801.00.10, HTSUS. As a consequence of
the elimination of Customs Form 3311 for purposes of this tariff
provision, Customs amended section 10.1. More specifically,
section 10.1(a) requires that the foreign shipper make a
declaration that the articles claimed to be free of duty under
subheading 9801.00.10, HTSUS, were exported from
the United States and that they were returned without having been
advanced in value or improved in condition while abroad. The
declaration is to include the port from which the goods were
exported and the approximate date. In addition, section 10.1(a)
also requires that "...the owner, importer, consignee, or agent
having knowledge of the facts regarding the claim for free
entry..." sign a declaration that the foreign shipper's
declaration is true and provide the name and location of the
manufacturer of the articles. Section 10.1 was further amended
to provide that where the returned article has a value of $1,250
or more and is not clearly marked with the name and address of
the U.S. manufacturer, the port director may require such other
documentation or evidence as may be necessary to substantiate the
claim for duty-free treatment. T.D. 94-47. See 19 CFR 10.1(a)
for the complete requirements.
Section 10.1(d), provides that if the port director is
reasonably satisfied, based on the nature of the articles or
production of other evidence, that the articles are imported in
circumstances meeting the requirements of subheading 9801.00.10,
HTSUS, the port director may waive the requirements of producing
the documents specified above. While it is well settled that
compliance with mandatory regulations is a condition precedent to
a claim for the duty-free entry of merchandise (see Mi-Scott
International Ltd., v. United States, 13 CIT 1046 (1989)), the
port director at the port of entry may waive production of this
documentation if he is reasonably satisfied that the
circumstances and conditions of 19 CFR 10.1(d) are present and
met. Thus, the decision to grant such a waiver rests with the
port director.
In this case, the port director has denied classification
under 9801.00.10, HTSUS, on the basis that there is a total lack
of physical and documentary proof that the imported automobile
parts are of United States origin. We concur, as there is no
documentation in the record before us that supports that the
articles that were imported are United States-origin goods.
Neither the declaration from the foreign shipper nor a
declaration by the owner, importer, consignee, or agent having
knowledge of the facts regarding the claim for free entry was
submitted as required by 19 CFR 10.1(a). The information
contained in the letter from the president of Innopex Limited
makes no connection between the articles that are the subject of
this protest and the claim that they are United States goods
exported and returned. The undated letter does not contain even
a vague reference to the automobile parts in question -- no entry
number is identified, and no description of the articles is
provided. We are not persuaded that this letter should be given
any evidentiary value in light of the fact that it lacks any
correlation to the entry at issue. Consequently, we find that
the parts are not entitled to subheading 9801.00.10, HTSUS,
treatment.
HOLDING:
On the basis of the information submitted, we are of the
opinion that the automobile parts at issue are ineligible for
duty-free treatment under subheading
9801.00.10, HTSUS. No documentation has been presented to
establish that these articles are products of the United States
that were not advanced in value or improved in condition while
abroad. Accordingly, this protest should be denied in full.
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 attached to Customs Form 19,
Notice of Action, to 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 the public
via the Diskette Subscription Service, Freedom of Information Act
and other public access channels.
Sincerely,
John Durant, Director,
Tariff Classification Appeals
Division