CON-9-03-RR:IT:EC 226334 GOB

Thomas G. Travis, Esq.
Jeremy Ross Page, Esq.
Sandler, Travis & Rosenberg, P.A.
5200 Blue Lagoon Drive
Miami, Florida 33126-2022

RE: Subheading 9804.00.10, HTSUSA; Professional tools and equipment; Personal exemption

Dear Messrs. Travis and Page:

This is in response to your correspondence dated June 3, 1994 to the Entry Division of the Office of Trade Operations. Your letter was referred by the Office of Field Operations to this office on August 3, 1995. You made an additional submission dated November 27, 1995.

FACTS:

Your ruling request was submitted on behalf of Westinghouse Electric Corporation ("WEC"). The request pertains to subheading 9804.00.10, Harmonized Tariff Schedule of the United States ("HTSUSA").

You describe the pertinent facts as follows.

In the course of providing repair and installation services to customers around the world, WEC sends engineers and other professionals to various job sites. A variety of professional tools and equipment (collectively referred to as "equipment") are required for the work performed. The cross-border movement of employees and equipment can occur in several ways. For WEC's power generation operation, the equipment will generally not be exported from the United States with the lead engineer. In some cases, the lead engineer will already be at the foreign site when the equipment arrives. In certain other cases, the equipment will be shipped prior to the lead engineer's departure. In this latter situation, WEC will try to have the equipment at the foreign site within one to two weeks of the engineer's arrival. In each of these two situations, after the foreign work is completed, the equipment will generally arrive back in the U.S. one to two weeks after the engineer arrives back in the U.S. In some cases, however, the time gap may be up to four weeks. In addition to these two situations, WEC's power generation operation may also ship equipment with the lead engineer or have it hand-carried by one engineer upon export and then imported into the U.S. by another engineer. On lengthy projects (one to two years), the engineer may enter and depart the U.S. while the equipment remains at the foreign site.

With respect to WEC's nuclear operation, the equipment is usually radioactive. Because under U.S. law, WEC is required to ship such equipment on a cargo-only aircraft, the engineer does not travel with the equipment to the job site. Two situations are possible. First, the equipment is either consigned to WEC's customer or to Westinghouse Energy Systems Europe ("WESE"), which clears the equipment through Customs and arranges for movement to the job site. The WEC crew, including the lead engineer, travels separately to the job site. Similarly, after the job is completed the WEC crew will return to the U.S., with the tools following shortly thereafter. The second situation involves the shipment of the tools to WESE, which provides the crew to perform the work. In some cases, a WEC engineer may arrive from the U.S. to assist in the project. After the completion of the WEC job (or jobs), the equipment is returned to the U.S., unaccompanied by a WEC engineer.

ISSUE:

The applicability of subheading 9804.00.10, HTSUSA to the facts presented.

LAW AND ANALYSIS:

REQUESTER'S STATEMENTS, CLAIMS, AND REQUESTS

In your letter of June 3, 1994 you request clarification with respect to the following.

Time Limitations - You state, in pertinent part:

...we respectfully request that Customs not set any finite time limit for acceptability under HTS subheading 9804.00.10. Instead, we would ask that Customs provide the District Director with the authority, on a case by case basis, to determine whether this requirement is satisfied.

Exporter & Importer of Record - You state, in pertinent part:

It is our position that the language "for the account of" in the statute supports the ability of WEC to act as the exporter/reimporter on its employees' behalf regardless of Customs' characterization of HTS subheading 9804.00.10 as a personal exemption. ... In the alternative, if Customs does not agree that WEC itself can act as the exporter/reimporter "for the account of" the individual WEC employees, we would propose that the employee be permitted to submit a superseding WEC bond at the time of reimportation of the tools and equipment.

Multiple Trips - You seek confirmation of your view that the fact that an employee might make several trips back and forth to the U.S. prior to the completion of the project should not affect the applicability of subheading 9804.00.10, as the returning equipment will still be claimed under the personal exemption of the same WEC employee who originally exported the merchandise.

Multiple Employees - You state, in pertinent part:

Some projects obviously require the services of more than one employee. In those situations, we believe that the export documentation, whether or not filed by WEC or an individual employee, should be allowed to reflect the names of all of the employees for whose "account" the merchandise is being exported. In such situations, we believe that upon the return of the merchandise, WEC should be allowed to act as importer of record "for the account of" any of the listed employees. If Customs were to continue to require the employee to act as importer of record, any of the listed employees should be acceptable.

We should note that in a given situation all of the employees might not be required to depart and return on the same dates. If this situation arises, it would appear that a potential question could exist if the return shipment is made within two to four weeks of the return of an individual employee who did not actually depart within one to two weeks of the initial exportation...

Besides the above scenario, there may also be instances where the WEC employee who exports the tools is not the same as the one who imports them back into the United States, and the returning employee is not among the listed employees for whose "account" the merchandise is being exported...

...tools and equipment may occasionally be shipped either on their own or accompanied by a WEC employee, but returned to the United States unattended.

Registration Requirements - You state, in pertinent part:

Finally, we would also request that Customs review the necessity of having the individual WEC employee complete a CF 4455 (Certificate of Registration) prior to exportation and present a CF 3299 (Declaration for Free Entry of Unaccompanied Articles) upon reimportation...

In your submission dated November 27, 1995, you address the following issues.

WEC as Importer of Record for the "Account of" an Individual Employee - You state, in pertinent part:

In sum, it is clear that under 19 U.S.C. 1484, WEC is authorized to act as importer of record, indeed, perhaps required to act in that capacity unless the entry is made in the name of a Customs broker. That position is consistent with the "for the account of language" of HTS Subheading 9804.00.10, the "by or for" language of HTS Subheading 9813.00.50, and the language of U.S. Note 1(b) to Subchapter XIII of Chapter 98 of the HTS. Allowing WEC to act as importer of record is the only means to consistently enforce these related provisions...

WEC as Importer or Record as a "Person" Under HTS Subheading 9804.00.10 - You state, in pertinent part:

...your office raised the intriguing question as to whether it would be possible to consider WEC as a "person" for the purposes of HTS Subheading 9804.00.10... ... Even in the absence of employees, a corporation can "enter" a jurisdiction as a legal matter by simply sending its assets into that jurisdiction. By the same token, a corporation can "leave" a jurisdiction by returning its employees or assets..

Consequently, if the law generally recognizes that a corporation can "arrive" or "enter" a jurisdiction in this way, we see no reason to preclude such an interpretation under the Customs laws...

Temporal Limitations - You state, in pertinent part:

...Customs should determine, on a case-by-case basis, whether this requirement has been satisfied.

Multiple Employees - You state, in pertinent part:

What WEC proposes in this situation is that it provide a list of all employees initially assigned to the particular project and, where appropriate, update that list to reflect any additions/changes in the WEC employees working on that engagement.

Documentation - You state, in pertinent part:

...we do not believe that presentation of a CF 4455 and CF 3299 should be the only manner in which a claim for classification under this tariff provision can be supported...

What WEC has proposed goes beyond a mere oral declaration, calling for the provision of export- and import-related documentation other than the CF 4455 and CF 3299 to substantiate a claim under HTS Subheading 9804.00.10. Such documentation...would include, inter alia, copies of commercial invoices, packing lists, bills of lading, and Shipper's Export Declarations, all of which would provide written verification that the tools being imported are the same tools as those that were previously exported for use on the particular WEC project.

CUSTOMS' PRECEDENT AND AUTHORITY

General Note 1 to the HTSUSA provides as follows:

Tariff Treatment of Imported Goods and of Vessel Equipments, Parts and Repairs. All goods provided for in this schedule and imported into the customs territory of the United States from outside thereof, and all vessel equipments, parts, materials and repairs covered by the provisions of subchapter XVIII to chapter 98 of this schedule, are subject to duty or exempt therefrom as prescribed in general notes 3 through 14, inclusive, and general note 16.

Subheading 9804.00.10, HTSUSA, provides for duty-free treatment for the following:

Articles imported by or for the account of any person arriving in the United States from a foreign country:

Professional books, implements, instruments and tools of trade, occupation or employment, which have been taken abroad by him or for his account.

The predecessor to subheading 9804.00.10, HTSUSA, was item 810.20, Tariff Schedules of the United States Annotated ("TSUSA"), which contained language identical to subheading 9804.00.10.

In A Manual of Customs Law by Ruth F. Sturm, 1974 edition, p. 173-174, the author states, in pertinent part:

Where Congress has carved out special privileges or exemptions from the general provisions levying duties upon imported articles, the courts have strictly construed such exceptions and have resolved any doubt in favor of the government. Swan & Finch Company v. United States, 190 U.S. 143, 23 SCR 702, 47 L. Ed. 984 (1903); Pelz-Greenstein Co. v. United States, 17 CCPA 305, T.D. 43718 (1929)...

A conditionally free provision is in the nature of a privilege and must be strictly construed. All regulations must be complied with. MacNichol Packing Co., et al. v. United States, 14 Ct. Cust. Appls. 400, T.D. 42050 (1927); Afram Bros. Company v. United States, 49 Cust. Ct. 53, C.D. 2360 (1962)... ... An exception which carves out something which would otherwise be included must be strictly construed. Goat & Sheepskin Import Co., et al. v. United States, 5 Ct. Cust. Appls. 178, T.D. 34254 (1914); [et al.]

The following Customs rulings are pertinent to the subject ruling request.

In Ruling 223373 dated December 11, 1991, which involved the applicability of subheading 9804.00.10, we stated in pertinent part as follows:

The exemption for tools of trade [subheading 9804.00.10] is considered a personal exemption available only to individuals arriving in the U.S. from a foreign country. Merchandise consigned to and entered by or for the account of a firm does not qualify for this exemption. There is no requirement of ownership by the individual in order to benefit from the exemption. Therefore, merchandise of domestic or foreign manufacture exported from the U.S. by an individual employed by the company, AFL, and reimported by the same individual, even though actually owned by AFL, is eligible for exemption from duty as tools of trade. Additionally, the act by the employee of accompanying the equipment to and from Mexico, although not required, would be a sufficient connection between the exportation of the goods and the employee's journey home. ... The equipment which will be accompanied by an employee of AFL to Mexico from the U.S. and from Mexico returning to the U.S. will be entitled to exemption from duty under 9804.00.10 HTSUS as tools of trade if the CF 4455, the CF 3299 and the CF 7501 is [sic] completed and presented according to 19 CFR 148.53, 10.68 of the Customs Regulations.

In Ruling 223198 dated October 7, 1991, we stated in pertinent part:

9804.00.10 HTSUS is considered a personal exemption available only to individuals arriving in the U.S. from a foreign country. Merchandise consigned to and entered by or for the account of a firm does not qualify for this exemption. There is no requirement of ownership by the individual in order to benefit from the exemption. Therefore, merchandise of foreign manufacture exported from the U.S. by an individual and reimported by the same individual, even though actually owned by the company by which such individual is employed, is eligible for exemption from duty as tools of trade.

From the facts presented on the CF 4455, we deduce that Mr. Wills...spent a total of two weeks in Barranquilla, Columbia [sic] during February, 1990. The equipment, on the other hand, was exported from the U.S. to Columbia [sic] on December 26, 1989, a month prior to the employee's arrival in Columbia [sic], and delivered and entered into the U.S. on May 24, 1990, over three months after the employee returned to the U.S. It is not sufficient that the merchandise and the employee are simultaneously in the country during some period of time. Although this nexus must be shown, there is an additional requirement that the articles and the employee come back into the U.S. concurrently. Based upon the documentation presented, this requirement has not been met. In Ruling 714111 dated October 20, 1980, we stated in pertinent part as follows:

Inasmuch as item 810.20, TSUS, is personal in nature, the imported article must be in the name of an individual, not a corporation. If a claim for free entry is made under this provision, it is essential that before exportation the article be registered on a CF 4455 in the name of the individual employee of the corporation by or for whose account the article is to be shipped. However, if the article is not registered, a CF 3299 must be executed by the arriving person or employee at the time of entry.

C.S.D. 80-155 (711263 dated November 7, 1979), which involved item 801.20, TSUSA, states in pertinent part:

Item 810.20, TSUS, is categorized by the tariff schedules as a personal exemption and, therefore, requires that the action be done by or for the account of an individual, rather than a business activity. ORR Ruling 75-0134 states that: "Therefore, the tools of trade must be taken out and returned either by the employee or for his account, and not in the name of the company." We have ruled that item 810.20, TSUS, is not concerned with the ownership of such articles but is concerned with whether such articles are taken out and returned by or for the account of an individual. Therefore, such articles mentioned in section 10.68, Customs Regulations, owned by a corporation, could be entitled to duty-free treatment under item 810.20, TSUS, if they were taken out and returned by or for the account of an employee of the corporation.

C.S.D. 80-84 (710375 dated August 14, 1979), which involved item 810.20, TSUSA, states in pertinent part:

...This [item 810.20) is a personal exemption available to individuals.

A corporation could bring equipment into the United States under this exemption if an individual of the corporation takes the equipment in and out of the country in his own name. T.D. 53136 makes this possible by providing that ownership of tools of trade is not a condition for free entry. Merchandise of domestic or foreign origin exported from the United States and reimported by the same individual, even though the equipment or tools are not his personal property, can qualify for free entry under item 810.20.

C.S.D. 80-75 (710884 dated August 8, 1979) contains language substantially the same as that excerpted from C.S.D. 80-84, supra.

PRD 74-16 dated June 20, 1974 stated in pertinent part:

...a corporation or other entity cannot claim entitlement to item 810.20, TSUS, as it is a personal exemption which may be claimed only by an individual returning to the United States.

DETERMINATIONS

After a consideration of the facts and issues presented, and the applicable statutes, regulations, and precedent, we make the following determinations.

Subheading 9804.00.10 as a Personal Exemption/Ability of WEC to Make Entry

As the language of subheading 9804.00.10 and the above-cited rulings make clear, subheading 9804.00.10 is a personal exemption available only to individuals. As the cited rulings indicate, the corporate entity WEC is not a "person" for the purpose of subheading 9804.00.10. Thus, WEC cannot make entry "on its own behalf" and utilize subheading 9804.00.10.

Pursuant to 19 U.S.C. 1484, WEC, as the owner of the equipment, may make entry for the equipment as the importer of record. However, as the importer, WEC would not be entitled to claim the employee's personal exemption since the employee's exemption is limited to the employee.

The next question, or series of questions, relates to the WEC employee (or employees) who is arriving in the United States from a foreign country. Subheading 9804.00.10 pertains to "[a]rticles imported by or for the account of any person arriving in the United States from a foreign country." The articles to which subheading 9804.00.10 applies are described as "...tools of trade, occupation, or employment, which have been taken abroad by him or for his account." The language of subheading 9804.00.10 indicates that if just one employee is involved, the articles must have been taken abroad by that employee, or for his account, and the same articles must be imported by or for the account of that same person who took the articles abroad. Rulings 223373 and 223198, C.S.D. 80-155 (citing ORR Ruling 75-0134), and C.S.D. 80-84, all excerpted supra, make clear the requirement that the same person must be involved with the exportation and the reimportation of the equipment.

Timing

The equipment does not have to accompany the employee on his trip from the United States, nor must it accompany the employee on the employee's return to the United States. However, the employee must return to the United States within a reasonable period of time of the return of the equipment. Similarly, the employee must leave the United States within a reasonable period of time of the shipment of the equipment from the United States.

We note that Ruling 223198, excerpted supra, states in pertinent part:

...there is an additional requirement that the articles and the employee come back into the U.S. concurrently. (Emphasis supplied.)

We believe that the "concurrent requirement" of Ruling 223198 is satisfied by the employee leaving or returning within a reasonable period of time of the departure or return of the equipment. Webster's Third New International Dictionary (1968; unabridged) defines "concurrent" in pertinent part as follows:

1 a : converging, meeting, intersecting, running together at a point...2 : occurring, arising, or operating at the same time often in relationship, conjunction, association, or cooperation...3 : acting in conjunction...

We believe that the second definition supra is the most pertinent definition for the purpose of the subject issue. As stated supra, we believe that the "concurrent requirement" of is satisfied by the employee leaving or returning within a reasonable period of time of the departure or return of the equipment.

Multiple Employees

To the best of our knowledge, the issue with respect to the use of multiple employees and subheading 9804.00.10 has not been addressed. We believe that, under certain circumstances, subheading 9804.00.10 may be utilized where multiple employees are involved. The employee who claims entitlement to the exemption must be able to show that entitlement whether the employee is alone or in a group. However, the exemption is personal to the claiming employee, who is the importer of record.

Additional Trips by Employees

Provided that the requirements of subheading 9804.00.10, as described in this ruling, are met, the employee or employees may make an additional trip or trips from the foreign place to the United States and back to the foreign place without invalidating the subheading 9804.00.10 claim. As stated supra, in order to qualify for subheading 9804.00.10, the employee must leave the United States within a reasonable period of time of the shipment of the merchandise and the employee must return to the United States within a reasonable period of time of the return of the merchandise.

Documentation Required

WEC asks for the ability to submit documentation other than the CF 4455 and CF 3299 to support its claim for subheading 9804.00.10. We are unable to grant this request.

In Ruling 223373, supra, we stated:

Before exportation, the equipment foreign or domestic [sic] subject to classification under 9804.00.10 HTSUS, must be registered on Customs Form 4455, Certificate of Registration, in the name of the individual, or the employee of an organization, by or for whose account the articles are taken or shipped abroad and will be returned. Upon reentry into the U.S., the returning individual or broker on behalf of the returning individual is required to present the CF 4455, the CF 7501, Entry Summary including a reference made to the employee as the importer, and the Customs Form 3299, Declaration For Free Entry of Articles Not Accompanying a Resident or Nonresident. If the district director is satisfied an oral declaration may be accepted in lieu of a written declaration.

HOLDINGS:

1. As the language of subheading 9804.00.10 and the above-cited rulings make clear, subheading 9804.00.10 is a personal exemption available only to individuals. As the cited rulings indicate, the corporate entity WEC is not a "person" for the purpose of subheading 9804.00.10. Thus, WEC cannot make entry "on its own behalf" and utilize subheading 9804.00.10. The language of subheading 9804.00.10 indicates that if just one employee is involved, the equipment must have been taken abroad by that employee, or for his account, and the same equipment must be imported by or for the account of that same person who took the articles abroad. Rulings 223373 and 223198, C.S.D. 80-155 (citing ORR Ruling 75-0134), and C.S.D. 80-84, all excerpted supra, make clear the requirement that the same person must be involved with the exportation and the reimportation of the equipment.

2. The equipment does not have to accompany the employee on his trip from the United States, nor must it accompany the employee on the employee's return to the United States. However, the employee must return to the United States within a reasonable period of time of the return of the equipment. Similarly, the employee must leave the United States within a reasonable period of time of the shipment of the equipment from the United States.

3. Under certain circumstances, subheading 9804.00.10 may be utilized where multiple employees are involved. The employee who claims entitlement to the exemption must be able to show that entitlement whether the employee is alone or in a group. However, the exemption is personal to the claiming employee.

4. Provided that the requirements of subheading 9804.00.10, as described in this ruling, are met, the employee or employees may make an additional trip or trips from the foreign place to the United States and back to the foreign place without invalidating the subheading 9804.00.10 claim.

5. As stated in Ruling 223373, before exportation, the equipment subject to classification under 9804.00.10 HTSUS, must be registered on Customs Form 4455, Certificate of Registration, in the name of the individual by or for whose account the equipment is taken or shipped abroad and will be returned. Upon reentry into the U.S., the returning individual is required to present the CF 4455, the CF 7501, Entry Summary including a reference made to the employee as the importer, and the Customs Form 3299, Declaration For Free Entry of Articles Not Accompanying a Resident or Nonresident. If the district director is satisfied an oral declaration may be accepted in lieu of a written declaration.

Sincerely,

Director
International Trade Compliance
Division


cc: U.S. Customs Service
Marilyn Babousis, FNIS (Team 243)
J.F.K. Airport
Bldg. 77
Jamaica, NY 11430