Application for Further Review of Protest No. 3802-19-100282; Subheading 9801.00.10, HTSUS; skids and collars; dunnage

HQ H303863 June 6, 2019 OT:RR:CTF:VS H303863 CMR CATEGORY: Classification Center Director Automotive and Aerospace Center of Excellence and Expertise U.S. Customs and Border Protection 200 East Bay Street Charleston, SC 29401 Attn: William E. Raymond RE: Application for Further Review of Protest No. 3802-19-100282; Subheading 9801.00.10, HTSUS; skids and collars; dunnage Dear Center Director: This is in reference to the Application for Further Review (“AFR”) of Protest No. 3802-19-100282, timely filed on March 6, 2019, on behalf of TRW Canada Limited, against your decision to deny classification of the merchandise at issue under subheading 9801.00.10, Harmonized Tariff Schedule of the United States (“HTSUS”), and for the collection of the merchandise processing fee for the entry. The AFR was properly approved. FACTS: The merchandise at issue is identified as returnable dunnage, i.e., skids and collars. The merchandise was entered on October 25, 2017, and the entry was liquidated on September 7, 2018. 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 merchandise processing fee under 19 CFR § 24.23(c)(1)(i). The protestant seeks reliquidation of the entry and a refund of duties and of the merchandise processing fee paid, with interest. Your office indicates that the reason for denial of the protestant’s request for reliquidation is that the foreign shipper’s declaration does not contain all the information required by the Customs and Border Protection (CBP) Regulations. In support of their claim, the protestant has submitted: The entry’s details specified in Section 1, Part 5, of the CBP Form 19 (Protest form). A list of the subject line items for the entry. The foreign shipper’s declaration, issued by ZF Group (TRW), which indicates the goods were exported from the United States from the Port of Detroit or Port Huron, Michigan. Rather than indicating a date “on or about” the merchandise was exported from the United States, the shipper simply states “Containers (ships weekly with parts from [the U.S. manufacturer]). The form does indicate that the goods are returned without having been advanced in value or improved in condition by any process of manufacture or other means. ZF Group (TRW)’s name and address appear on the declaration, along with a shipment identification number, which is simply the entry number. The reason for shipment stated on the form is “returnable shipping containers.” The declaration is signed by an individual identified as a “materials supervisor” and has a typed date of February 19, 2019 at the bottom right of the page. 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. 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 February 25, 2019, contains the entry number identified as the shipment identification number, and is signed by an “attorney-in-fact” of the importer’s agent. The manufacturer’s affidavit, indicating that the goods at issue are 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 goods as “collar” and “skid.” The affidavit is dated October 4, 2016, and covers a blanket period of January 1, 2017 to December 31, 2017. It is signed by a “customer service director” of the U.S. manufacturer. A copy of a commercial invoice, dated October 23 or 25, 2017, showing the shipper as TRW Automotive, a consignee in Waupaca,Wisconsin, a description of the merchandise as “base” and “collars,” along with the tariff classification headings, the quantities of each, the unit price and the total price. We note the invoice total is less than $10,000. In a box on the invoice is a description: “Used, Empty shipping devices being returned for reuse.” ISSUE: Whether the merchandise at issue 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 that the skids and collars are products of the United States. The protestant cites to HQ 559598, dated March 12, 1996, for support of their position that subheading 9801.00.10, HTSUS, applies to the merchandise at issue. However, that ruling did not discuss the documentary requirements necessary for classification under subheading 9801.00.10, HTSUS, which are at issue. HQ 559598 merely stated that the vehicle at issue therein would qualify for duty-free entry under subheading 9801.00.10, HTSUS, “provided the documentary requirements of 19 CFR 10.1 are satisfied.” As such, HQ 559598 has no bearing on this matter. 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 whether 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 issued by ZF Group (TRW); however, the declaration does not include all of the required information. Specifically, the declaration states that the articles were exported from either the Port of Detroit or Port Huron on a weekly basis, but provides no dates for exportation of the merchandise being brought back into the United States. Information as to the specific port of export and dates of export 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 articles were not advanced in value or improved in condition. In addition, the declaration fails to provide a description of the merchandise (simply stating it is “returnable shipping containers”), the quantity, or the value of the merchandise as required by 19 C.F.R. § 10.1(a)(1). Reference to the entry number for the imported merchandise is insufficient to meet these requirements of 19 C.F.R. § 10.1(a)(1). 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 agent’s declaration and that the declaration includes all of the required information. A “Manufacturer’s Affidavit” was submitted by the protestant. However, as noted above, no information was provided regarding the date of export from the United States of the skids and collars. The port director may require additional documentation or evidence per 19 C.F.R. § 10.1(b), to substantiate the claim for duty-free treatment including a U.S. export invoice, bill of lading or airway bill evidencing the exportation of the articles from the United States. As 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. See HQ H301343, dated December 20, 2018; HQ H301344, dated December 18, 2018; and, HQ H302356, dated May 21, 2019. HOLDING: The merchandise at issue is not eligible for duty-free treatment under subheading 9801.00.10, HTSUS. The protest should be DENIED. 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, Myles B. Harmon, Director Commercial and Trade Facilitation Division