CON-9-04-RR:IT:EC 226904 GOB

Jack Rafferty
Manager, Consulting Services Department
PBB Group
P.O. Box 950
434 Delaware Avenue
Buffalo, New York 14202

RE: Temporary importation bond; subheading 9813.00.05, HTSUS; Repair; Alteration; Processing; 19 CFR 10.31(g), 181.43-.45, 181.53(b)(5); Unused merchandise drawback; 19 U.S.C. 1313(j)(1) and (3), 3333; NAFTA drawback

Dear Mr. Rafferty:

This is in response to your letter of March 26, 1996 on behalf of Husky Injection Molding Systems Ltd. ("Husky").

By facsimile transmission of April 19, 1996, you withdrew your request for confidentiality.

FACTS:

In your letter of March 26, 1996, you state as follows:

For some time, we have been filing temporary importation bonds (T.I.B.'s) for certain parts which Husky ships from Canada to one of its U.S. suppliers...[who] assembles these parts into a sub-assembly consisting as well of parts sourced/produced in the U.S. and third countries. ... In the U.S. [the supplier] does the following with the parts that are supplied by Husky from (not manufactured in) Canada and which, until January 1, 1996, were routinely entered under T.I.B.:

Spherical Bearing - is inserted onto the front end of the spline shaft in the motor housing casting. Tapered Roller Bearing - is inserted into the rear end of the spline shaft and then into the motor housing casting. Hydraulic Motor - is attached to the spline shaft and then bolted to the motor housing casting. Slides and Rails - are bolted to the motor and drive castings.

The "Extruder Drive Units" are then exported to Canada and entered there free of duty. ... In the situation described above, none of the components supplied by Husky in Canada to [the supplier] are further processed, i.e., none of those components is advanced in value or improved in condition by any process of manufacture while in the U.S. Neither are those same components repaired. We believe that the components are "altered" inasmuch as their identity is now lost in and subservient to the identity of the greater sub-assembly. ... As a separate item for your consideration, could the filing of "unused merchandise drawback" on the same Canadian supplied components on export of the "Extruding Drive Units" be an alternative to the filing of T.I.B.'s on entry into the U.S. of the Canadian supplied components?

ISSUES:

1. May the parts be entered under subheading 9813.00.05, HTSUS?

2. Is 19 CFR 181.53(b)(5) applicable to the factual situation described supra?

3. Are the exported articles (the extruding drive units) eligible for drawback pursuant to 19 U.S.C. 1313(j)(1)?

4. May you file NDDP-exempt temporary importation bond entries for consumption entries filed since January 1, 1996.

LAW AND ANALYSIS:

Issue One

Pursuant to General Note 1, Harmonized Tariff Schedule of the United States ("HTSUS"), all merchandise imported into the United States is subject to duty unless specifically exempted therefrom.

Subheading 9813.00.05, HTSUS, provides for the temporary duty-free entry of:

Articles to be repaired, altered, or processed (including processes which result in articles manufactured or produced in the United States.)

Pursuant to U.S. Notes 1(a) and (c) of Subchapter XIII of Chapter 98, HTSUS, which contains subheading 9813.00.05:

The articles described in the provisions of this subchapter, when not imported for sale or for sale on approval, may be admitted into the United States without the payment of duty, under bond for their exportation within 1 year from the date of importation, which period, in the discretion of the Secretary of the Treasury, may be extended, upon application, for one or more further periods which, when added to the initial 1 year, shall not exceed a total of 3 years ... ... For purposes of this subchapter, if an article imported into the United States under heading 9813.00.05 is withdrawn for exportation to the territory of Canada or Mexico, the duty assessed shall be waived or reduced in an amount that does not exceed the lesser of the total amount of duty payable on the article that would have been payable on importation under chapters 1 through 97, inclusive, of the Harmonized Tariff Schedule of the United States or the total amount of customs duties paid to Canada or to Mexico on the exported article, unless such article is covered by section 203(a)(1) through 203(a)(8), inclusive, of the NAFTA Implementation Act. The amount of duties or refunds calculated on such articles pursuant to this note shall be adjusted to take into account any subsequent claim for preferential tariff treatment made to another NAFTA country. This note shall apply to shipments to Canada on or after January 1, 1996, and to Mexico on or after January 1, 2001.

19 CFR 181.53(b)(5), promulgated by Treasury Decision 96-14 (published in the Customs Bulletin and Decisions on February 14, 1996 at p.6), provides:

(5) Temporary importation under bond. Except in the case of a good imported from Canada or Mexico for repair or alteration, where a good, regardless of its origin, was imported temporarily free of duty for repair, alteration or processing (subheading 9813.00.05, Harmonized Tariff Schedule of the United States) and is subsequently exported to Canada or Mexico, duty shall be assessed on the good on the basis of its condition at the time of its importation into the United States. Such duty shall be paid no later than 60 calendar days after either the date of exportation or the date of entry into a duty-deferral program of Canada or Mexico, except that, upon filing of a proper claim under paragraph (a)(3) of this section, the duty shall be waived or reduced in an amount that does not exceed the lesser of the total amount of duty payable on the good under this section or the total amount of customs duties paid to Canada or Mexico.

At issue are the applicability of subheading 9813.00.05, HTSUS, and 19 CFR 181.53(b)(5) to the factual situation described by the ruling requester on behalf of Husky.

We determine that the parts described, supra, i.e., spherical bearings, tapered roller bearings, hydraulic motors, slides and rails, may be entered under subheading 9813.00.05 because they are processed within the meaning of subheading 9813.00.05. In Ruling 224211 dated October 20, 1992, we stated:

In this instance, certain speaker parts will be imported through the port of San Juan and assembled with domestic parts into a complete speaker unit. After assembly, the speaker unit will be exported to Japan, Canada and South Africa. This type of assembly would appear to be a "processing" within the meaning of subheading 9813.00.05, HTSUS. We have previously ruled that component parts imported for the purpose of assembly with other parts into a finished article constitute a "processing." HQ 221572 (08/02/89) and HQ 219823 (11/03/87). Accordingly, the subject speaker parts are entitled to temporary duty-free entry, under bond, as articles to be processed.

Similarly, in Ruling 221488 dated May 15, 1991, we held that roller bearings are "processed" within the meaning of subheading 9813.00.05, HTS, when they are "installed ... into the various parts of the Fuller Loesche Mill and the Fuller HRC Roll Crusher."

Please note U.S. Note 2(b) of Subchapter XIII of Chapter 98, HTSUS, which states:

2. Merchandise may be admitted into the United States under heading 9813.00.50 only on condition that: * * * * * (b) If any processing of such merchandise results in an article (other than an article described in (a) of this U.S. Note) manufactured or produced in the United States:

(i) A complete accounting will be made to the Customs Service for all articles, wastes and irrecoverable losses resulting from such processing; and

(ii) All articles and valuable wastes resulting from such processing will be exported or destroyed under customs supervision within the bonded period; except that in lieu of the exportation or destruction of valuable waste, duties may be tendered on such wastes at rates of duties in effect for such wastes at the time of importation.

Issue Two

A different question is presented with respect to the applicability of 19 CFR 181.53(b)(5). In particular, in addition to being a "processing," is the subject operation a "repair or alteration," such that the "except" clause at the beginning of section 181.53(b)(5) would apply to take the operation out of section 181.53(b)(5)?

Webster's Third New International Dictionary (unabridged, 1966) defines "repair" as follows, in pertinent part:

repair ... 1 a: to restore by replacing a part or putting together what is torn or broken: fix, mend ... b: to restore to a sound or healthy state: renew, revivify...

It is clear that the work performed is not a repair of the parts at issue. There is no restoration, replacement, renewal, or the like to the parts.

Webster's Third New International Dictionary (unabridged, 1966) defines "alteration" and "alter" as follows, in pertinent part:

alteration ... 1 a: the act or action of altering b: the quality or state of being altered 2: the result of altering...

alter ... 1: to cause to become different in some particular characteristic (as measure, dimension, course, arrangement, or inclination) without changing into something else ... syn see change

The Random House Dictionary of the English Language (The Unabridged Edition, 1973) defines "alteration" and "alter" as follows, in pertinent part:

alteration ... 1. the act or state of altering: or the state of being altered ... 2. a change; modification ...

alter ... 1. to make different in some particular, as size, style, course, or the like; modify ... 3. to change; become different or modified.

19 CFR 181.64(a) provides in pertinent part as follows:

181.64 Goods re-entered after repair or alteration in Canada or Mexico.

(a) General. This section sets forth the rules which apply for purposes of obtaining duty-free or reduced-duty treatment on goods returned after repair or alteration in Canada or Mexico as provided for in subheadings 9802.00.40 and 9802.00.50, HTSUS...For purposes of this section, "repairs or alterations" means restoration, addition, renovation, redyeing, cleaning, resterilizing, or other treatment which does not destroy the essential characteristics of, or create a new or commercially different good from, the good exported from the United States.

The matter at issue here does not involve subheadings 9802.00.40 or 9802.00.50, and thus the definition in section 181.63(a) is not controlling here. Nevertheless, we believe that the above definition is instructive. The work performed in this case would not fall within the definition of "repairs or alterations" in 19 CFR 181.64(a).

In U.S. v. Oakville Company, 402 F. 2d 1016, 56 CCPA 1,8, C.A.D. 943 (1968), a case which involved Paragraph 1615, Tariff Act of 1930, as amended by the Customs Administrative Act of 1938, T.D. 49646, and as further amended by the Customs Simplification Act of 1954, T.D. 53599, with respect to articles exported for repairs or alterations, the court stated, in pertinent part:

In our view, paragraph 1615(g)(1) does not apply because the paper tape was not exported "for repairs or alterations." Like the pins, the paper tape was sent to Canada to become a component or element of pins-in-rolls, a new commercial entity manufactured in Canada by De Long Hook & Eye Company. The tape was clearly not "repaired" and we do not think it was exported "for" alterations, notwithstanding it was somewhat altered in having the pins stuck into ribs formed in it. Paragraph 1615(g)(1) refers to an "article" which is exported, that same "article" being returned after being repaired or after having had alterations made in it and then further makes reference to "the article itself in its repaired or altered condition." We think that this contemplates that the article returned is still recognizable as an article in the same category as the article exported and does not contemplate such a situation as that here where the paper tape - the "article" exported - comes back as a mere component of an entirely different article, namely, pins-in-rolls. The pins-in-rolls is an article consisting of several components: a wood core, two cardboard discs held thereto by staples to for a spool, a formed paper ribbon made from the exported tape into which pins have been inserted at regular intervals, the pin-carrying ribbon being wound on the spool. This is a far cry from the exported tape. It is in no sense the article exported. (emphasis in original.)

In Guardian Industries Corporation v. U.S., 3 C.I.T. 9, 14 (1982), which involved item 806.20, Tariff Schedules of the United States, the predecessor to subheading 9802.00.50, HTSUS, the court stated, in pertinent part:

Beyond these considerations, it is to be noted that for tariff purposes a process which converts one article into a new article is not an "alteration." A.F. Burstrom v. United States, 44 CCPA 27, C.A.D. 631 (1957); C.J. Tower & Sons of Niagara, Inc. v. United States, 45 Cust. Ct. 111, C.D. 2208 (1960). In Burstrom, steel ingots were exported into Canada and ramparted after having been converted into steel slabs. The chemical composition of the steel had not changed in the course of the slabbing operations. The imported articles were known as ingots and the exported articles were known as slabs and they were bought and sold commercially as different products. Furthermore the court noted that the ingots and slabs were separately specified in paragraph 304 of the Tariff Act of 1930, as modified. The court concluded that slabs "are clearly not the same articles as ingots" (44 CCPA at 29) and the processing of the ingots into slabs was therefore held not to be an alteration within the purview of paragraph 1615(g) of the Tariff Act of 1930. [footnote omitted.] In short, Burstrom holds that when a foreign processing creates a new article of commerce, the processing is not an alteration.

The court in Guardian Industries notes, in a footnote at the end of the excerpted language, that "[t]he decision in Burstrom was cited by the Court of Customs and Patent Appeals with approval in Dolliff, 66 CCPA at 81, 83-84, 599 F. 2d at 1020." On the basis of the authorities noted supra, we conclude that the work described in this case is not an "alteration." The parts at issue are assembled into extruder drive units, an article of commerce different from the parts themselves. Accordingly, we determine that the work is not a "repair or alteration," as these words are used in 19 CFR 181.53(b)(5).

Thus, the except clause at the beginning of 19 CFR 181.53(b)(5) is not applicable, and 19 CFR 181.53(b)(5) applies to the factual situation at issue here.

Issue Three

Pertinent statutory and regulatory provisions are as follows.

19 U.S.C. 1313(j)(1) and (3) provide as follows:

(j) Unused merchandise drawback

(1) If imported merchandise, on which was paid any duty, tax, or fee imposed under Federal law because of its importation- (A) is, before the close of the 3-year period beginning on the date of importation- (i) exported, or (ii) destroyed under customs supervision; and (B) is not used within the United States before such exportation or destruction; then upon such exportation or destruction 99 percent of the amount of each duty, tax, or fee so paid shall be refunded as drawback. The exporter (or destroyer) has the right to claim drawback under this paragraph, but may endorse such right to the importer or any intermediate party. * * * * * (3) The performing of any operation or combination of operations (including, but not limited to, testing, cleaning, repacking, inspecting, sorting, refurbishing, freezing, blending, repairing, reworking, cutting, slitting, adjusting, replacing components, relabeling, disassembling, and unpacking), not amounting to manufacture or production for drawback purposes under the preceding provisions of this section on- (A) the imported merchandise itself in cases to which paragraph (1) applies, or (B) the commercially interchangeable merchandise in cases to which paragraph (2) applies, shall not be treated as a use of that merchandise for purposes of applying paragraph (1)(B) or (2)(C).

With respect to exportations to Canada and Mexico, section 203 of the North American Free Trade Agreement (NAFTA) Implementation Act (Public Law 103-182; 107 Stat. 2057, 2086; 19 U.S.C. 3333), provides for the treatment of goods subject to NAFTA drawback. Section 203(a) provides in pertinent part as follows:

(a) Definition of a Good Subject to NAFTA Drawback - For purposes of this Act and the amendments made by subsection (b), the term "good subject to NAFTA drawback" means any imported good other than the following: (1) A good entered under bond for transportation and exportation to a NAFTA country. (2) A good exported to a NAFTA country in the same condition as when imported into the United States. For purposes of this paragraph- (A) processes such as testing, cleaning, repacking, or inspecting a good, or preserving it in its same condition, shall not be considered to change the condition of the good, and * * * * *

The Customs Regulations issued under the authority of the NAFTA Implementation Act specifically provide for the availability of drawback on the exportation of merchandise to a NAFTA country.

19 CFR 181.43 provides:

181.43 Eligible goods subject to drawback.

Except as otherwise provided in this subpart, drawback is authorized for an imported good that is entered for consumption and is: (a) Subsequently exported to Canada or Mexico (see 19 U.S.C. 1313(j)(1)); (b) Used as a material in the production of another good that is subsequently exported to Canada or Mexico (see 19 U.S.C. 1313(a)); or (c) Substituted by a good of the same kind and quality as defined in 181.44(c) of this subpart and used as a material in the production of another good that is subsequently exported to Canada or Mexico (see 19 U.S.C. 1313(b)).

19 CFR 181.44(a) provides:

181.44 Calculation of drawback.

(a) General. Except in the case of goods specified in 181.45 of this part, drawback of the duties previously paid upon importation of a good into the United States may be granted by the United States, upon presentation of a NAFTA drawback claim under this subpart, on the lower amount of: (1) The total duties paid or owed on the good in the United States; or (2) The total amount of duties paid on the exported good upon subsequent importation into Canada or Mexico.

19 CFR 181.44(g), promulgated by Treasury Decision 95-68 and published in the Customs Bulletin on September 20, 1995, provides:

(g) Unused goods under 19 U.S.C. 1313(j)(1) that have changed in condition. An imported good that is unused in the United States under 19 U.S.C. 1313(j)(1) and that is shipped to Canada or Mexico not in the same condition within the meaning of  181.45(b)(1) may be eligible for drawback under this section, except when the shipment to Canada or Mexico does not constitute an exportation under 19 U.S.C. 1313(j)(4).

19 CFR 181.45 provides in pertinent part:

181.45 Goods eligible for full drawback.

(a) Goods originating in Canada or Mexico. A Canadian or Mexican originating good that is dutiable and is imported into the United States is eligible for drawback without regard to the limitation on drawback set forth in 181.44 of this part if that originating good is:

(1) Subsequently exported to Canada or Mexico; (2) Used as a material in the production of another good that is subsequently exported to Canada or Mexico; or (3) Substituted by a good of the same kind and quality and used as a material in the production of another good that is subsequently exported to Canada or Mexico. ... (b) Claims under 19 U.S.C. 1313(j)(1) for goods in same condition. A good imported into the United States and subsequently exported to Canada or Mexico in the same condition is eligible for drawback under 19 U.S.C. 1313(j)(1) without regard to the limitation on drawback set forth in 181.44 of this part. ... (1) Same condition defined. For purposes of this subpart, a reference to a good in the "same condition" includes a good that has been subjected to any of the following operations provided that no such operation materially alters the characteristics of the good: (i) Mere dilution with water or another substance; (ii) Cleaning, including removal of rust, grease, paint or other coatings; (iii) Application of preservative, including lubricants, protective encapsulation, or preservation paint; (iv) Trimming, filing, slitting, or cutting; (v) Putting up in measured doses, or packing, repacking, packaging, or repackaging; or (vi) Testing, marking, labelling, sorting or grading. The exported articles, the extruder drive units, are goods subject to NAFTA drawback, as that term is used in 19 U.S.C. 3333(a). It does not appear that any of the exceptions stated in 19 U.S.C. 3333(a)(1) through (a)(8) apply. We believe that the exception in 19 U.S.C. 3333(a)(1) for "a good entered under bond for transportation and exportation to a NAFTA country" would not apply since drawback would not be pertinent for Husky if it imported the parts under a duty-free provision such as subheading 9813.00.05. Husky makes this drawback inquiry as a possible alternative to a temporary importation under bond.

The assembly operation involved here is beyond the scope of the operations described in 19 U.S.C. 1313(j)(3). Thus, 19 U.S.C. 1313(j)(3) is not applicable.

With respect to the "unused" requirement of 19 U.S.C. 1313(j)(1), we stated in Ruling 225552:

A definition of the term "unused merchandise" was not provided in the language of the new act [section 632, title VI - Customs Modernization, Public Law 103-182, the North American Free Trade Implementation Act (107 Stat. 2057), enacted December 8, 1993]. However, in Customs Service Decision ("C.S.D.") 81-222 and 82-135 it was found that an article is used when it is employed for the purpose for which it was manufactured or intended. See C.S.D. 81-179.

In C.S.D. 81-222, we stated in pertinent part, with respect to the use requirement of the former 19 U.S.C. 1313(j):

In its primary meaning, "use" as a noun may signify the act of employing anything, the act of using or applying an object to one's service. Further, the verb "to use" means to employ in some manner appropriate to the object to accomplish an end, which, without the use of the object, would not be accomplished. (Turner v. Smith, 269 Ky. 880, 108 S.W. 2d 1019, at 1020 (S.Ct. Ky. 1937)). The boxes, bottles, cans, etc. to be imported in this case are to be employed or used for their intended purpose, i.e. to act as containers for the transportation and ultimate sale of merchandise. Nothing per se is being done to these containers: they are being put to use in their primary function, which clearly excludes them for eligibility for drawback under 19 U.S.C. 1313(j). See also McJimsey v. City of Des Moines, et al., 231 Iowa 693, 2 N.W. 2nd 65 (S. Ct. Iowa 1942), Cypress Lawn Cemetery Ass'n v. City and County of San Francisco, 284 P. 506 (1930), and Panhandle Gravel Co. v. Wilson, 248 S.W. 2d 779 (1952).

Based on the above authorities, and based on the fact that the parts at issue are assembled and are used in the production of the extruder drive units, we determine that the imported articles are not "unused merchandise" within the meaning of 19 U.S.C. 1313(j)(1) and/or (j)(3).

Thus, drawback is not payable under 19 U.S.C. 1313(j)(1) upon the exportation of the extruder drive units.

Drawback may be payable under 19 U.S.C. 1313(a). See 19 CFR 181.43(b) and 181.44, supra.

Issue Four

In your letter of March 26, 1996, you state:

Our request for NDDP-exempt T.I.B. substitutions for consumption entries (filed since January 1, 1996 due to the confusion of the NDDP and "alteration") will be approved.

You have not presented us with enough information to rule here. However, we call you attention to 19 CFR 10.31(g), which states in pertinent part:

(g) Claim for free entry under Chapter 98, Subchapter XIII, HTSUS may be made for articles of any character described therein which have been previously entered under any other provision of law and the entry amended accordingly upon compliance with the requirements of this section, provided the articles have not been released from Customs custody, or even though released from Customs custody if it is established that the original entry was made on the basis of a clerical error, mistake of fact, or other inadvertence within the meaning of section 520(c)(1), Tariff Act of 1930, as amended, and was brought to the attention of the Customs Service within the time limits of that section.

Under 19 U.S.C. 1520(c)(1), an entry may be reliquidated to correct a clerical error, mistake of fact, or other inadvertence not amounting to an error in the construction of the law. The statute provides that the error must be manifest from the record or established by documentary evidence and brought to the attention of the appropriate Customs officer within one year from the date of liquidation.

No allegation has been made with respect to the applicability of 19 U.S.C. 1520(c)(1), nor has any documentary evidence been submitted with respect to such a potential claim.

HOLDINGS:

1. The parts may be entered under subheading 9813.00.5, HTSUS.

2. The work at issue is not a "repair or alteration," as these words are used in 19 CFR 181.53(b)(5). Thus, the except clause at the beginning of 19 CFR 181.53(b)(5) is not applicable, and 19 CFR 181.53(b)(5) applies to the factual situation at issue here.

3. The imported articles are not "unused merchandise" within the meaning of 19 U.S.C. 1313(j)(1) because they are assembled into new articles, the extruder drive units. Thus, drawback is not payable under 19 U.S.C. 1313(j)(1) upon the exportation of the extruder drive units.

4. We are unable to issue a ruling with respect to this issue. Please note the applicability and requirements of 19 CFR 10.31(g) and 19 U.S.C. 1520(c)(1).

Sincerely,

Director,
International Trade Compliance
Division


cc: Director, U.S. Customs Service NAFTA Center
P.O. Box 610088
Dallas, TX 75261