OT:RR:CTF:VS H307282 EE
Port Director
U.S. Customs and Border Protection
726 Exchange Street Suite 400
Buffalo, NY 14210
RE: Application for Further Review of Protest No. 0901-19-100717; Subheading 9801.00.10, HTSUS
Dear Port Director:
This is in reference to the Application for Further Review (“AFR”) of Protest No. 0901-19-100717, timely filed on November 26, 2019, on behalf of ZF TRW Canada Limited (hereinafter, the “protestant”), concerning the applicability of subheading 9801.00.10, Harmonized Tariff Schedule of the United States (“HTSUS”), to the merchandise at issue and for the collection of the merchandise processing fee (“MPF”) for the entry.
FACTS:
The merchandise subject to the protest at issue consists of certain paint products. The merchandise was entered between July 9, 2018 and December 4, 2018 and liquidated between June 7, 2019 and November 1, 2019. The protestant claims that the merchandise is eligible for the duty exemption in subheading 9801.00.10, HTSUS, which also allows the merchandise to be exempt from the MPF under 19 C.F.R. § 24.23(c)(1)(i). The protestant seeks reliquidation of the entries and a refund of duties and of the merchandise processing fees paid, with interest. 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 the specific date of exportation was missing. In support of their claim, the protestant provided the following documentation:
- A list of the subject line item for each entry.
-A Declaration of Foreign Shipper issued by the protestant stating that the articles were exported from the United States from the Port Huron, MI on or about July - November 2018 and that they were being returned without having been advanced in value or improved in condition by any process of manufacture or other means. The declaration lists the merchandise description, merchandise number, quantity, and value. The declaration also lists the protestant’s address and a shipment identification number. The declaration is signed by an individual in the shipper’s shipping department and is dated November 21, 2019.
-The importer’s agent’s declaration stating that the foreign shipper’s declaration is true and correct and identifying the U.S. manufacturer of the goods and its location. The declaration further states that the goods 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 declaration is dated November 21, 2019, contains the shipment identification number, and is signed by an “attorney-in-fact” of the importer’s agent and lists their address.
-The manufacturer’s affidavit, indicating that the merchandise at issue is of U.S. origin and that no drawback was claimed on the exportation of the merchandise. The manufacturer’s affidavit contains a description of the merchandise as C40B Magni paint. The affidavit is dated April 5, 2018. The blanket period listed on the affidavit is from January 1, 2018 to December 31, 2018. It is signed by a General Manager of the U.S. manufacturer.
-Commercial invoices listing the vendor as the protestant, the consignee as Magni Industries, a description of the merchandise as C40B Magni Paint, the weight, the unit price, and the total price.
-Canadian Customs Coding Forms for the exportation of the Magni paint from the United States to Canada listing the importer as the protestant, vendor as Magni Industries, the merchandise as Magni coating C40B, U.S. port of export, U.S. country of origin, and the date of export from the United States. The protestant also submitted commercial invoices from Magni Industries which correspond to the Canadian Customs Forms.
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 goods 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. Nonetheless, 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 w hether the articles were returned without having been advanced in value or improved in condition by any process of manufacture or other means. In addition, the documentation is to be filed “in connection with the entry.” As previously noted, the protestant has provided us with the foreign shipper’s declaration it issued. The declaration lists the port of exportation, the date of exportation, merchandise description, merchandise number, quantity, and value. However, rather than listing a specific date, the declaration provides that the merchandise was exported from the United States from the Port Huron, MI on or about July - November 2018. To support this, the protestant provided Canadian Customs Coding Forms for the Magni paint exported from the United States to Canada. The Canadian Customs Coding Forms are date stamped during the period listed on the foreign shipper’s declaration. For example, the first Canadian Customs Coding Form provided in the exhibit is date stamped July 12, 2018 and the last Canadian Customs Coding Form is dated stamped November 15, 2018. The protestant also submitted commercial invoices from Magni Industries corresponding to the Canadian Customs Forms. We find that despite the lack of specificity of the date on the foreign shipper’s declaration, the declaration includes all of the required information since the date range listed is supported by the Canadian Customs Coding Forms and the corresponding invoices.
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. Since the documentary requirements under 19 C.F.R. § 10.1 are met, we find that the merchandise is eligible for duty-free treatment under subheading 9801.00.10, HTSUS.
HOLDING:
The merchandise at issue is eligible for duty-free treatment under subheading 9801.00.10, HTSUS, and is exempt from the MPF under 19 C.F.R. § 24.23(c)(1)(i). The protest should be GRANTED.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (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 reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
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,
Craig T. Clark, Director
Commercial and Trade Facilitation Division