OT:RR:CTF:VS H301344 EE
Port Director
U.S. Customs and Border Protection
P.O. Box 3130
Laredo, TX 78044-3130
RE: Application for Further Review of Protest No. 2304-18-100138; Subheading 9801.00.10, HTSUS
Dear Port Director:
This is in reference to the Application for Further Review (“AFR”) of Protest No. 2304-18-100138, timely filed on August 21, 2018, on behalf of Progress Rail Locomotive Inc. (hereinafter, the “protestant”), concerning the applicability of subheading 9801.00.10, Harmonized Tariff Schedule of the United States (“HTSUS”), to the merchandise at issue.
FACTS:
The merchandise subject to the protest at issue consists of various locomotive parts. The merchandise was entered on April 11, 2017 and liquidated on February 23, 2018. Your office denied the protestant’s request for reliquidation stating that the foreign shipper’s declaration requirement under 19 C.F.R. § 10.1(a)(1) was not satisfied, namely, that the information concerning which port the articles were exported from in the United States and the date of exportation was missing. In support of their claim, the protestant provided the following documentation for the merchandise at issue:
-A commercial invoice from Kansas City Southern de Mexico to the protestant, dated June 4, 2017, listing the quantity, part description, part number, unit price, and total cost of the parts at issue.
-Five manufacturer’s affidavits containing the U.S. manufacturer’s attestation of the U.S. origin of the parts, listing the date of affidavit, manufacturer name and contact information, manufacturer part number and description, country of origin, whether the part was exported from the United States with the benefit of duty drawback, and whether the part was produced in the United States under the Temporary Importation Under Bond (“TIB”) provision 9813.00.05, HTSUS.
-An importer’s declaration, dated August 6, 2018, stating that the declaration by the foreign shipper is true, that the articles were manufactured by the various manufacturers listed on the manufacturer’s affidavits located in the listed locations, that the articles were not produced under subheading 9813.00.05, HTSUS, and that the articles were exported from the United States without benefit of drawback.
-A Declaration of Foreign Shipper issued by Kansas City Southern de Mexico stating that the articles were exported from the United States from an “unknown” port with an “unknown” date of exportation and that they were being returned without having been advanced in value or improved in condition by any process of manufacture or other means.
ISSUE:
Whether the merchandise is eligible for duty-free treatment under subheading 9801.00.10, HTSUS.
LAW AND ANALYSIS:
Section 904(b) of the Trade Facilitation and Trade Enforcement Act of 2015 (Pub. L. 114-125, February 24, 2016) amended subheading 9801.00.10, HTSUS, to include any products which are returned within 3 years after having been exported. Previously, subheading 9801.00.10, HTSUS, only applied to products of the United States. Subheading 9801.00.10, HTSUS, now provides for the 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 the instant case, the protestant states the parts are products of the United States. Section 10.1, CBP Regulations (19 C.F.R. § 10.1) sets forth the documentary requirements for entry under subheading 9801.00.10, HTSUS. We note that CBP has not yet amended the regulations to implement the change to subheading 9801.00.10, HTSUS. 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 returned without having been advanced in value or improved in condition by any process of manufacture or other means. As previously noted, the protestant has provided us with the foreign shipper’s declaration issued by Kansas City Southern de Mexico; however, the declaration does not include all of the required information. Specifically, the declaration states that the articles were exported from an unknown port on or about an unknown date. This information is necessary as it would assist CBP in tracing the exportation and subsequent importation of the article and support the importer’s claim that the article was not advanced in value or improved in condition.
Section 10.1(a)(2), CBP Regulations (19 C.F.R. § 10.1(a)(2)), requires the owner, importer, consignee, or agent having knowledge of the facts regarding the claim for free entry to declare that the foreign shipper’s statement is true, and, that the articles were not manufactured or produced in the United States under subheading 9813.00.05, HTSUS, and that the articles were exported from the United States without benefit of drawback. The information required also pertains to the name of the manufacturer, the location of the manufacturer, and the date of the declaration. We note that protestant has provided us with the importer’s declaration and that the declaration includes all of the required information. However, as previously noted, since the foreign shipper’s declaration does not contain all of the required information, 19 C.F.R. § 10.1(a)(1) is not satisfied. Accordingly, the articles are not eligible for duty-free treatment under subheading 9801.00.10, HTSUS.
HOLDING:
The protest should be DENIED.
Sixty days from the date of the decision, the Office of Trade, Regulations and Rulings will make the decision available to CBP personnel, and to the public on the Customs Rulings 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 and Trade Facilitation Division