CON 12
OT:RR:CTF:ER
H275165 KF
Theresa J. Bradley The Boeing Company Route 291 & Stewart Avenues
Ridley Park, PA 19078
RE: Articles imported for official use by members of foreign armed forces during deployment to the United States; Subheading 9809.00.30, HTSUS; 19 C.F.R. § 148.90.
Dear Ms. Bradley:
This is in response to your letter, dated March 15, 2016, for a ruling on the classification of articles imported to the United States for official use by foreign armed forces.
FACTS:
Boeing is engaged in the manufacture, acquisition, and sale of equipment and other articles utilized for defense and security purposes. Boeing’s customers include domestic and foreign armed forces, who contract for the supply of a wide range of goods. Boeing concluded a sale to the Canadian Department of National Defense (“DND”) for the supply of various articles. The stated purpose of the sale is to support the DND during its deployment to the United States. Boeing explains that the DND will conduct joint training exercises with the armed forces of the United States and Canada. You have included a representative list of articles that Boeing intends to import for this purpose, which includes: 15 Medium to Heavy Lift Chinook Helicopters, training materials, fixtures, consumables, chemicals, special shelters, and gloves.
Subject to separate Services and Support Contract concluded with the DND, Boeing is committed to importing any additional articles which may become necessary in the course of DND’s deployment. Boeing explains that any articles imported but not consumed or destroyed by the DND during its deployment will be exported from the United States when the deployment terminates. Boeing seeks to import all articles for use by the DND during its deployment to the United States under subheading 9809.00.30, Harmonized Tariff Schedule of the United States (“HTSUS”).
ISSUES:
Whether articles imported by Boeing for use by foreign armed forces during deployment to the United States are properly classified under subheading 9809.00.30, HTSUS.
LAW AND ANALYSIS:
Subheading 9808.00.30, HTSUS, exempts from duty payment articles imported “for foreign governments on a reciprocal basis” if the articles are imported “for the official use of members of the armed forces of any foreign country on duty in the United States.” Articles are imported on a reciprocal basis if they entail a “mutual concession of advantages or privileges for purposes of commercial or diplomatic relations.” See Nippon Express USA, Inc. v. United States, 28 C.I.T. 1845, 1850 (2004) (quoting Black's Law Dictionary 1276) (“Nippon”).
In Nippon, Nippon Express USA, Inc. imported ground support equipment and dummy missiles for use by Japanese Ground Self-Defense Forces receiving training in the United States. 28 C.I.T. at 1846. The Court of International Trade (“CIT”) determined that the articles were properly entered under subheading 9809.00.30, HTSUS. Id.
The CIT reviewed 19 C.F.R. § 148.90, which provides instructions to Customs and Border Protection (“CBP”) regarding the admission of articles for use by foreign armed forces within the United States. Id. at 1847, 1949. 19 C.F.R. § 148.90(a) requires:
Port directors … [to] admit the following free of duty and internal revenue tax imposed upon or by reason of importation: … (3) [a]rticles entered or withdrawn from warehouse for consumption for the official use of members of the armed forces of any foreign country on duty in the United States, under subheading 9809.00.30, HTSUS.
The CIT noted that Congress intended to “craft a broad exemption” for articles imported for domestic use by foreign armed forces in order to secure reciprocal benefits for the United States’ armed forces abroad. See Nippon Express USA, Inc., 28 C.I.T. at 1851-1852.
CBP is authorized to deviate from the requirements of 19 C.F.R § 148.90(a)(3) to the extent of being “advised officially of a finding by the Secretary of the Treasury that a foreign country does not reciprocate to members of the armed forces of the United States on duty in its country.” See 19 C.F.R § 148.90(b). We note that neither Chapter 98, Subchapter IX, of HTSUS nor 19 C.F.R. § 148.90 contains any other specific limitations on the type or kind of article that may be imported for use by foreign armed forces on duty in the United States.
19 C.F.R. § 148.90(d) provides that:
If any question arises as to the status of the importer under subheadings 9806.00.20, 9806.00.45 and 9809.00.30, HTSUS, or whether articles entered thereunder are for official use or for personal or family use, but not as an accommodation to others or for sale or other commercial use, the port director shall report the available facts to the Commissioner of Customs for instructions.
Akin to the articles imported by Nippon Express USA, Inc., Boeing seeks to import helicopters and numerous other articles necessary for DND’s joint training exercises with the armed forces of the United States and Canada. Boeing states the articles are imported for the sole use of members of the DND completing their deployment in the United States. Boeing intends to export from the United States all remaining articles unused by the conclusion of the DND’s deployment. Accordingly, pursuant to 19 C.F.R. § 148.90(a)(3) we find that Boeing may enter the subject articles for official use by the DND during its deployment to the United States under subheading 9809.00.30, HTSUS. CBP has not been advised by the Secretary of the Treasury that Canada does not reciprocate to members of the United States’ armed forces on duty in Canada.
HOLDING:
Based on the above, we find that the subject articles imported by Boeing for official use by foreign armed forces during deployment to the United States are eligible for entry under subheading 9809.00.30, HTSUS.
Please note that 19 C.F.R. § 177.9(b)(1) provides that “[e]ach ruling letter is issued on the assumption that all of the information furnished in connection with the ruling request and incorporated in the ruing letter, either directly, by reference, or by implication, is accurate and complete in every material respect.” If any fact in the transaction varies from the facts stipulated to herein, this decision shall not be binding on CBP, as provided for in 19 C.F.R. § 177.9(b).
Sincerely,
Monika R. Brenner, Acting Chief
Entry Process & Duty Refunds Branch