CON-9-09-R:C:E 226271 JRS
David R. Ostheimer, Esq.
Lamb & Lerch
233 Broadway
New York, NY 10279
RE: Applicability of subheading 9813.00.30, HTSUS, to temporary
importation under bond of motor vehicles which were originally
produced in the United States for testing, evaluation and review
purposes.
Dear Sir:
This is in response to your request for a ruling, on behalf
of your client, BMW of North America, Inc. (BMW NA), on the
applicability of a Temporary Importation Bond (TIB) for the
limited purpose of testing, evaluation and review of one specific
BMW model vehicle, namely the Z-3 Roadster. Our decision
follows.
FACTS:
BMW NA manufactures in the United States the BMW Z-3
Roadster, which is designed and destined for sale in foreign
countries. It is intended that some of these U.S.-manufactured
vehicles, after having been exported to a foreign country and
inspected, titled and registered there, will be reimported into
the United States for the limited purpose of testing, evaluation
and review under subheading 9813.00.30, HTSUS. These vehicles
are to be reexported from the United States within the time
period permitted by the terms of the bond.
In your ruling request you state that the BMWs will be
provided, on a temporary basis, to automotive journalists,
promotional companies and authorized new car dealers for the sole
purpose of obtaining the consumer's reaction to the vehicle.
Each person who test drives the BMW Z-3 model will be asked to
provide a detailed evaluation of the vehicle. This BMW model
presently is not produced for the U.S. market and BMW NA would
like to test American reaction to this specific model for
possible future production. We acknowledge receipt of the
"Roadster Technical Evaluation Form."
There are approximately 220 of these BMW Z-3 Roadsters to be
covered by a TIB. During the entire time period these vehicles
will be in the United States, they will be owned and controlled
by the importer, BMW NA, and they will be maintained at the
various BMW dealerships located throughout the United States. It
will be a requirement for every BMW dealer who receives one of
the vehicles imported under a TIB to provide to, and request the
completion of, the testing and evaluation form from each and
every person who test drives the BMW Z-3 Roadster. Approximately
350 BMW dealers will participate in this testing and evaluation
program with each respective dealer maintaining physical custody
of these Roadsters for a period of 7 to 10 days.
ISSUE:
Whether motor vehicles, which were originally produced in
the United States, are eligible for temporary importation under
bond under subheading 9813.00.30, HTSUS.
LAW AND ANALYSIS:
Subheading 9813.00.30, HTSUS, provides for articles intended
solely for testing, experimental or review purposes, including
specifications, photographs and similar articles for use in
connection with experiments or for study.
Generally, articles imported under bond may not be imported
for the purpose of sale or sale on approval. Qualifying articles
may be imported and entered, temporarily free of duty under bond,
for an initial one-year period, which can be extended by the
district director for no more than a total importation period of
three years. At the end of the authorized importation period the
articles must be exported or destroyed under Customs supervision.
See U.S. Note 1(a) of Subchapter XII, Chapter 98, HTSUS.
A review of Customs decisions under subheading 9813.00.30,
HTSUS, and its predecessors (namely, item 864.30, TSUS, and
section 308(4), Tariff Act of 1930), does not disclose any
restriction regarding the status of the imported article, such as
its country of origin, in order to qualify under this provision.
There is no indication that the term "articles" used in this
provision was intended to be more restrictive than how it is used
in other chapters of the harmonized tariff schedule. See U.S.
Note 2 to Chapter 98, HTSUS, which states: "In the absence of a
specific provision to the contrary, the tariff status of an
article is not affected by the fact that it was previously
imported into the customs territory of the United States and
cleared through customs whether or not duty was paid upon such
previous importation." Since the term "articles" in subheading
9813.00.30, HTSUS, is not qualified by a modifier, we conclude
that articles are not restricted to those of foreign origin. The
articles must only be "imported." Therefore, the fact that the
articles in question were produced in the United States does not
preclude the entry of these articles under subheading 9813.00.30,
HTSUS.
What is controlling under subheading 9813.00.30, HTSUS, is
whether there is a legitimate test, experiment, or review of the
imported article within the meaning of the law. See generally
Customs Service Decisions (C.S.D.) 82-64, 83-45 and 84-59. How
the vehicles themselves are to be tested or how they are to be
used in connection with a test or a review is the focus of
whether the articles are eligible for temporary entry under this
particular subheading.
The Roadster Technical Evaluation Form submitted covers 40
different vehicle characteristics to be rated on a scale of 1 to
5, with each criteria supplemented by a comments/remarks section.
It also includes a section for comments regarding
malfunction/failure, proposed changes for improvement as well as
personal satisfaction. It is clear from the Evaluation Form
that there is an intention to test the article itself. BMW NA
states that it will tabulate the results of the testing and
evaluation form and prepare a report which will be provided to
the manufacturer. Modifications based upon the results of the
report, where practicable, will be made to the vehicles prior to
their production sale within the United States.
The long-held Customs Service position has been that pure
consumer market tests are ineligible under the noted subheading
because they are not legitimate "tests" of the article. We do
not view this test to be purely a consumer marketing test. In HQ
223971, dated May 22, 1992, Customs held that the evaluation of
the American riders' reaction to the high-speed train is an
essential element in the testing phase of the high-speed train
technology. In this case, the evaluation of the American
consumers' reaction to the drivability, design and comfort of the
Z-3 Roadster which has been originally designed and destined for
sale in foreign countries is an essential element in the testing
phase of the suitability of this model's sale in the United
States. We find that this type of testing to determine the
American driver's reaction to the BMW Z-3 Roadster constitutes a
legitimate test within the meaning of the law and is not a pure
market test which is precluded under this subheading.
Accordingly, this model, the BMW Z-3 Roadster, is eligible for
entry under subheading 9813.00.30, HTSUS.
HOLDING:
The BMW Z-3 Roadster originally produced in the United
States may be reimported into the United States under a TIB which
qualifies for admission under subheading 9813.00.30, HTSUS.
Please note that this ruling does not address the applicability
of any EPA or DOT requirements upon entry.
Sincerely,
John Durant, Director Commercial Rulings Division