OT:RR:CTF:VSP H296672 tmf
Port Director
U.S. Customs and Border Protection
Port of Buffalo
725 Exchange Street – Suite 400
Buffalo, New York 14210-1469
RE: Application for Further Review of Protest No. 0712-18-100032; Subheading 9801.00.10, HTSUS; bevel gear housing
Dear Port Director:
This is in response to an Application for Further Review (“AFR”) of Protest No. 0712-18-100032, timely filed on February 20, 2018, by the law firm of Drinker Biddle & Reath, LLP, on behalf of the Protestant, Ivaco Rolling Mills 2004 L.P. (“Ivaco”), concerning the liquidation of a bevel gear housing under subheading 8461.40.50, Harmonized Tariff Schedules of the United States (HTSUS). The Port of Buffalo properly approved AFR in this instance. This protest decision is based upon our review of this protest submission and all accompanying documents.
In this protest, counsel claims that the bevel gear housing was properly imported as a returned U.S. good within subheading 9801.00.10, HTSUS. Counsel also contends that the bevel gear housing is a product of the U.S. that is supported by documentation required by 19 C.F.R. § 10.1. Ivaco requests the entry be reliquidated in subheading 9801.00.10, HTSUS with cancellation of the duty bill.
FACTS:
Ivaco is a producer of steel billets and hot rolled wire rod. Its steel production plant is located in Ontario, Canada and its facilities include no-twist mills. The no-twist mills at Ivaco’s Ontario production facility were claimed to be produced in Worcester, Massachusetts by Primetals Technologies (hereinafter “Primetals”, formerly Morgan Construction Company). The no-twist mills are stated to have been exported from Massachusetts and installed at Ivaco’s production facilities in Ontario, Canada. According to counsel, the gears within the no-twist mill wear out and the bevel gear housing is separated from the no-twist mill for exportation from Canada to the U.S. through the Port of Buffalo for repair and refurbishment.
On December 18, 2017, your office denied duty-free treatment under subheading 9801.00.10, HTSUS, for the bevel gear housing which was entered on September 4, 2017. In the Customs Form (CF) 29, your office noted Primetals’ Manufacturer’s Affidavit which was signed by Rick (Vishnu) Narain, Director of Long Rolling Spares and Guides of Primetals, was not consistent with other provided documentation since it states that the bevel gear housing was manufactured in 1989. However, the foreign shipper’s declaration, which is dated November 17, 2017 by Bradley Mott, Purchasing Manager for Ivaco Rolling Mills, states the bevel gear housing was exported “on or about 1980.” In response to CBP’s Form 29, counsel provided an updated foreign shipper’s declaration signed and dated by Mr. Mott on February 14, 2018, attesting to the date of export from the U.S. listed as on, or about 1989. The CF 29 stated also that the declaration failed to provide the U.S. port of export. Additionally, your office states that Mr. Mott is neither an officer of the company, nor has he provided any evidence of a power of attorney as an officer of the company.
In support of the protest, counsel submitted an affidavit from Primetals dated December 7, 2017, which states that its no-twist mill was built in the U.S., and sold to the Protestant in 1989. The affidavit states that the bevel gear housing was removed from the no-twist mill in Canada where it was transferred to its facility in Ontario, Canada and later exported to Worchester, Massachusetts for reconditioning and repair. The affidavit confirms that Primetals’ bevel gear housing, part 10060345, is an original component of the no-twist mill.
ISSUE:
Whether the bevel gear housing qualifies for duty-free treatment under subheading 9801.00.10, HTSUS.
LAW AND ANALYSIS:
Subheading 9801.00.10, HTSUS, provides for duty-free treatment of products of the United States when returned after having been exported, or any other products when returned within 3 years after having been exported, without having been advanced in value or improved in condition by any process of manufacture or other means while abroad.
In order for exported goods that are subsequently returned to the United States to receive duty free status under subheading 9801.00.10, HTSUS, the goods must not have “been advanced in value or improved in condition by any process of manufacture or other means while abroad.”
In the case of entry documents filed with goods valued over $2,500.00, 19 C.F.R. § 10.1 sets forth the documentary requirements for entry under subheading 9801.00.10, HTSUS. It is noted that CBP has not yet amended the regulations to implement the changes to subheading 9801.00.10, HTSUS, which occurred in 2016. While portions of the regulations are no longer pertinent, some portions of 19 C.F.R. § 10.1 still remain valid. For example, 19 C.F.R. § 10.1(a)(1) requires the foreign shipper to declare the following information with regard to articles in a shipment valued over $2,500: the port of exportation, the date of exportation, the quantity, the description of the merchandise, the value of the merchandise, the date of the declaration, and whether the articles were advanced in value or in condition by any process of manufacture or other means. In addition, 19 C.F. R. § 10.1 requires the foreign shipper’s declaration to indicate that the merchandise was exported from a specific U.S. port on or about a certain date; and that the goods were not subject to any advancement or improvement in value or processing, or other means. The importer must obtain the owner’s declaration attesting that the owner, an importer, a consignee, or agent has knowledge of the facts regarding the duty-free claim of entry, including that the articles were exported from the U.S. without the benefit of drawback. See 19 C.F.R. §10.1(a)(1) and (2).
In addition, if the goods are valued over $2,500.00 and are not clearly marked with the name and address of the U.S. manufacturer, the Center director may require, in addition to the declarations required in paragraph (a) of this section, other documentation to substantiate the claim for duty-free treatment. Some examples of evidence are: a U.S. manufacturer statement that attests the goods were manufactured in the United States; a U.S. export invoice, a bill of lading or airway bill showing the U.S. origin, and/or reason for exportation of the articles. See 19 C.F.R. § 10.1(a)(2)(b).
In this protest, counsel asserts that the protestant satisfied the requirements of 19 C.F.R. § 10.1(a) because the submitted foreign shipper’s declaration dated February 14, 2018, attests that the goods were not advanced in value, or improved in condition by any manufacturing process, or any other means while in Canada. Counsel contends that CBP recordkeeping regulations do not require record retention for 30 years in order to claim preferential treatment under subheading 9801.00.10, HTSUS. We disagree. While there is no time limit to make a claim under subheading 9801.00.10, HTSUS, for products of the United States, to the extent such a claim is made, the regulatory requirements must be met. As such, your office was correct to deny the claim for subheading 9801.00.10, HTSUS. The port and date of exportation from the United States assist in confirming that the requirements of subheading 9801.00.10, HTSUS, have been met.
HOLDING:
The protest should be DENIED.
In accordance with the Sections IV and VI of the CBP Protest/Petition Processing Handbook (CIS HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the Protestant no later than 60 days from the date of this letter. Any re-liquidation of the entry in accordance with this decision must be accomplished prior to mailing of the decision.
Sixty days from the date of the decision, the Office of Trade, Regulations and Rulings will make the decision to make available to CBP personnel, and to the public on the Customs Ruling Online Search System (CROSS) at https://rulings.cbp.gov/ which can be found on the U.S. Customs and Border Protection website at http://www.cbp.gov and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial Trade & Facilitation
Regulations & Rulings
Office of Trade