CON-9-04-CO:R:C:E 224617 JRS

Mr. Frank M. Murphy
Corporate Technical Advisor
John V. Carr & Son, Inc.
P.O. Box 33479
Detroit, Michigan 48232-5479

RE: Temporary Importation Under Bond (TIB); Inspection and Quality Check on Imported New Automobiles to Reveal Any Damage or Defects and possible correction/adjustment; Subheading 9813.00.5040, HTSUS; Payment of Duty Prior to Shipment to Canada under the United States-Canada Free Trade Agreement (CFTA); Article 404 of the CFTA

Dear Mr. Murphy:

This is in response to your request for a ruling dated March 29, 1992, on behalf of your client, on the applicability of the TIB provision, subheading 9813.00.05, HTSUS, for an inspection (quality check) and, if necessary, repair or adjustment of imported merchandise.

FACTS:

Your client, an importer and distributor of automobiles and automotive parts, is proposing to establish a quality assurance program for their imported vehicles at the point of discharge in the United States. All vehicles would be inspected and any damage or defects would be corrected prior to removal from the port area. Under this arrangement, the U.S. destined vehicles would be entered for consumption and the vehicles destined for Canada under a TIB.

It is the intent of the importer to enter all vehicles for the Canadian market under subheading 9813.00.0540, HTSUS. However, it is not known at the time of entry if the vehicles have sustained any intransit damage or will require any corrections. Each vehicle will undergo a thorough examination, and if repairs or adjustments are necessary, they will be accomplished, such as replacing broken or missing parts, touch- up painting, etc. Although each vehicle will undergo a quality check, it is anticipated that not every vehicle will require adjustment.

ISSUE:

(1) Whether imported motor vehicles may qualify under the temporary import provision of subheading 9813.00.05, HTSUS, "articles to be repaired, altered or processed in the United States," when at the time of entry it is unknown whether the vehicles have sustained any intransit damage or contain defects requiring repair or adjustment.

(2) Whether the January 1, 1994, implementation of Article 404 of the United States-Canada Free Trade Agreement will require the payment of any U.S. duty prior to exportation to Canada. LAW AND ANALYSIS:

Subheading 9813.00.05, HTSUS, provides for temporary duty- free entry, under bond (except under the CFTA), for merchandise imported into the United States for the purpose of repair, alteration or processing, including processes which result in articles manufactured or produced in the United States. This provision requires that the imported merchandise be exported or destroyed within one year of the date of importation. See Subchapter XIII, U.S. Note 1(a).

It is your position that since each vehicle will undergo an inspection and quality check with the intent to identify and correct deficiencies, that subheading 9813.00.0540, HTSUS, would be applicable. We disagree. In order to enter articles under subheading 9813.00.05, HTSUS, as an article to be repaired, there must be an intention at the time of entry that all the articles will actually be repaired. In this case, the automobiles are not entered with the intention of having repair work done but rather with the intention of inspecting the workmanship, and repairing only if after inspection, it is found necessary. Likewise, Customs has previously ruled that the multi-laser printers did not qualify for temporary duty-free treatment under subheading 9813.00.05, HTSUS, because at the time of entry the printer cartridges which may be in need of repair, if any, could not be determined until after inspection. See HQ 223827, dated May 19, 1992.

U.S. Note 1(c) to Subchapter XIII, Chapter 98, HTSUS, provides, in pertinent part, that the shipment to Canada of an article entered into the United States under heading 9813.00.05, HTSUS, shall not constitute an exportation, unless the article is a drawback eligible good [which in this case it is not] under section 204(a) of the United States-Canada Free Trade Agreement Implementation Act of 1988. See Subchapter XIII, U.S. Note 1(c).

We reject your argument that U.S. Note 1(c) to Subchapter XIII, Chapter 98, HTSUS, is only operative at statistical level 9813.00.0520 which covers articles to be processed into articles manufactured or produced in the United States. You do not believe that the goods entered under subheading 9813.00.0540 are intended to fall within the scope of the goods imported in bond as contained in Article 404(1), and as such, third country goods imported under bond for repair or alteration and exportation to Canada would be subject to the tariff of Canada and would avoid the payment of duties into the United States. It is our opinion that regardless of the statistical level breakout (e.g., .20 or .40 of the heading), goods entered under this heading would be subject to the tariff of the United States as defined in Article 404(1).

Assuming arguendo that your client did qualify for treatment under subheading 9813.00.05, HTSUS, the automobiles would be shipped to Canada and entered into the United States under the above heading. As this shipment destined for Canada does not qualify as an "exportation" pursuant to U.S. Note 1(c), then the automobiles are not eligible for treatment under subheading 9813.00.05, HTSUS, inasmuch as they cannot be considered exported to Canada. A failure to export or destroy the automobiles would result in a breach of the TIB, and a demand under the bond for the payment of liquidated damages equal to double the estimated duties would have to be paid. 19 CFR 10.39(d)(1).

There are two possible alternatives to the TIB procedure which would accomplish your client's objective of inspecting and, if necessary, repairing defects or damage. One is to make an entry into a Customs bonded manipulation warehouse (19 U.S.C. 1562). In a Class 8 warehouse, merchandise may be manipulated (such as cleaning, sorting, repacking or otherwise changing the condition of the merchandise) so long as it does not amount to a manufacture. Your attention is also invited to 19 U.S.C. 81c, which provides in relevant part that foreign and domestic merchandise of every description, except where prohibited by law, may without being subject to the Customs laws of the United States, be brought into a foreign trade zone and may be stored, sold, exhibited, broken up, repacked, assembled, distributed, sorted, graded, cleaned, mixed with foreign or domestic merchandise, or otherwise manipulated, or be manufactured.

Of course, if the CFTA goes into effect as scheduled on January 1, 1994, upon the withdrawal from a foreign trade zone or a bonded warehouse on a shipment to Canada, U.S. Customs duties will have to be paid, as if the automobiles were imported for domestic consumption. See Article 404(1) and (3) of the CFTA.

We are not in a position to rule on the effect of North American Free Trade Agreement until after Congress enacts the implementing legislation of the Agreement. However, under the Agreement, it appears that a repair or alteration performed under a TIB would be treated as part of a duty-deferral program. Therefore, duties would have to be paid to the United States within 60 days after its exportation to Canada but the amount may be waived if the amount assessed on importation into Canada (i.e., duty-free under the Automotive Products Trade Act) is the lesser amount than would have been paid to the United States. If you would resubmit your request at the appropriate time in the future, we would be happy to consider it. HOLDING:

Newly manufactured motor vehicles are not entitled to entry under subheading 9813.00.05, HTSUS, when they are imported to undergo an inspection and quality check with the intention, if necessary, to repair or adjust as described in the FACTS section.

Assuming the applicability of subheading 9813.00.05, HTSUS, to an operation, Article 404(1) of the CFTA would require the payment of U.S. customs duties applicable to those goods entered for consumption prior to their export to Canada.

Sincerely,

John Durant, Director