RR:IT:VA 546561 KCC

Port Director
U.S. Customs Service
P.O. Box 3130
Laredo, Texas 78044-3130

RE: Internal Advice; parts and accessories of televisions and electronic articles; amending protest; 19 CFR 174.14(a) and 174.28; 402(b); transaction value; related parties; 402(g)(1); circumstances of the sale; sale for exportation; J.L. Wood v. United States; HRLs 544230, 545254, 546069, 544775, 543633 and 545474; 402(b)(1)(B); packing costs; 402(h)(3); buying commission; Pier 1 Imports, Inc. v. United States; J.C. Penney Purchasing Corp. v. United States; Rosenthal-Netter, Inc. v. United States; destined for the U.S.; HRL 545368; 9801.00.20; 19 CFR 10.108; similar use agreement; bailment; HRL 222863

Dear Port Director:

This is in regard to a memorandum from the Supervisor Import Specialist, Duty Assessment Branch II, dated November 7, 1996, forwarding a request for Internal Advice dated October 10, 1996, submitted by Baker & McKenzie on behalf of Zenith Electronics Corporation. The issues raised are whether the protestant can amend its Protests, whether the imported Products are entitled to duty-free treatment pursuant to subheading 9801.00.20, Harmonized Tariff Schedule of the United States ("HTSUS"), and whether the Products imported from Mexico are appraised under transaction value pursuant to 402(b) of the Tariff Act of 1930, as amended by the Trade Agreements Act of 1979 ("TAA"), codified at 19 U.S.C. 1401a, based on the purchase price between Zenith and the Asian vendors. Information obtained in a telephone conversation between Zenith's Counsel and a member of my staff on March 20, 1997, obtained at the July 15, 1997, meeting and contained in an additional submissions dated September 8, 1997, was taken into consideration in reaching this decision. We regret the delay in responding.

FACTS:

The Products at issue are various foreign origin replacement parts and accessories for Zenith's main products, televisions and numerous electronic products. Zenith imports the Products from unrelated vendors in various Asian countries, with the exception of Lucky Goldstar Electronics, Inc. ("Lucky Goldstar"), to whom Zenith is related. As of November 1995, Lucky Goldstar owns a fifty-seven percent (57%) interest in Zenith. Zenith states that it imports only a few articles from Lucky Goldstar and it is the parties' long-standing policy to sell products to each other at an arm's length price. As evidence of this practice, Zenith provided two sets of invoices for two different products. The invoices show that Zenith paid Lucky Goldstar the same price for each product before and after the parties became related. Thus, Zenith states the relationship with Lucky Goldstar had no effect on the prices charged by Lucky Goldstar to Zenith for the parts and accessories. Counsel states that Zenith employs two buying agents in Asia, Zenith Taiwan, a wholly-owned subsidiary of Zenith, and HMO, Inc. a subsidiary of GC Thorsen, Inc., who act on behalf of Zenith in seeking and securing vendors. Counsel states that Zenith provides these agents with product specifications and requirements and the terms which Zenith will accept.

Prior to July 1994, Zenith entered the Products into the Long Beach port for consumption under transaction value pursuant to 402(b) of the TAA based on the price Zenith paid the foreign vendors. The Products then entered Zenith's Chicago warehouse until they were resold to U.S. customers.

In July 1994, Zenith moved its warehouse operations to Partes de Television de Reynosa, S.A. de C.V. ("Partes"), a wholly owned Mexican subsidiary of Zenith, to save on freight, labor and real estate costs. The previously imported duty-paid Products contained in the Chicago warehouse were moved to Partes. Now, Zenith imports its Products through the Long Beach port to McAllen, Texas via a Transportation and Exportation Bond. Zenith submitted samples of Customs Form 7512, Transportation Entry and Manifest of Goods Subject to Customs Inspection and Permit for Transportation and Exportation class of entry. The Products are then exported from the U.S. and proceed to the Partes warehouse.

At the Partes warehouse, the Products are unloaded and stored for a temporary period of time. When Zenith requires Products to fulfill U.S. customers orders, Partes simply repackages the Products for resale and ships them to the U.S. per Zenith's instructions. Zenith re-imports the Products and the U.S. customers either take title to the goods at entry or at customer specified locations. The U.S. customers pay Zenith for the goods. Partes does not receive money from the U.S. customers. Partes is paid by Zenith for its packing operation, including temporary storage and handling, through occasional lump-sum payments. Zenith has submitted samples of its invoices to the U.S. customers which make no mention of Partes or Mexico. Counsel states that the Products enter Mexico under bond and free of duty pursuant to Mexico's Maquiladora Program and, thus, they never enter Mexico's commerce. Zenith submitted copies of Zenith's Mexican Ministry of Commerce and Industrial Development Permits and Mexico's entry documents documenting the in-bond importation of various Products into Mexico. Counsel states that Zenith never planned to divert the Products into the Mexican commerce upon the occurrence of any particular contingency and Zenith does not transfer title to the Products to Partes or any other party. Counsel states that Zenith merely consigns the Products to Partes for temporary storage.

The terms of sale between Zenith and all the foreign vendors are "FOB Foreign Port." Counsel states that title and risk of loss to the Products pass from the foreign vendor to Zenith when the Products are laden aboard vessels bound for the U.S. in the foreign port specified by the parties in sales contracts. With regard to its buying agents, Zenith notes that title passes from the foreign vendors to the buying agents and then simultaneously to Zenith at the foreign port. Zenith has submitted representative samples of its purchase orders, packing lists, and commercial invoices as evidence that Zenith takes title in the foreign country and that the U.S. is the final destination of the Products. Additionally, Zenith has submitted bills of lading from shipping companies as evidence that the U.S. is the final destination of the Products and that Zenith is responsible for paying freight and related charges from Asia to the U.S.

Counsel states all of Zenith's foreign vendors are aware that the Products are being manufactured pursuant to Zenith's specifications for importation into the U.S. Zenith's specifications for the Products include the requirement that the Products meet all U.S. technical and safety standards and carry all required U.S. technical and safety labels. Zenith also requires that the Products be marked in accordance with U.S. Customs country of origin marking requirements. Moreover, Zenith's accessories require that Zenith's name and the Zenith product name be displayed in English on the product and product packing. Counsel stated in the March 20, 1997, telephone conversation that Zenith orders the Products from the foreign vendors for their own inventory. Counsel noted that Zenith orders its parts, i.e., transistors, and accessories, i.e., remote controls, based on their tracking information which analyzes the demand for their televisions. Thus, based on the number of televisions Zenith is making, Zenith can estimate the amount of parts and accessories they need to procure. Counsel maintains that all of the imported Products are specifically produced for Zenith, a U.S. company, for resale in the U.S. market.

With regard to Zenith's importation from Partes, Zenith made entry under transaction value pursuant to 402(b) of the TAA and based the value of each Product on the full resale price paid to Zenith by its U.S. customer. Zenith now submits that the proper appraisement of Products imported from Partes is transaction value pursuant to 402(b) of the TAA based on the price Zenith paid the foreign vendor. Additionally, in letters dated October 7 and 8, 1996, to the Supervisory Import Specialist, Counsel has requested to amend all Zenith's protests by adding an additional ground. Zenith submits that the Products previously entered into the U.S. duty-paid, which were warehoused in Chicago, and then moved to Partes, are entitled to duty-free treatment under subheading 9801.00.20, HTSUS. Counsel stated in the March 20, 1997, telephone conversation that Zenith has not claimed drawback on any of the Products eligible for subheading 9801.00.20, HTSUS, duty-free treatment.

ISSUE:

1. Whether the protestant can amend its Protests.

2. Whether the Products imported from Mexico should be appraised pursuant to transaction value of 402(b) of the TAA based on the purchase price between Zenith and the Asian vendors. If so, are the packing costs incurred in Mexico a statutory addition to the price actually paid or payable pursuant to 402(b)(1)(B) of the TAA.

3. Whether the imported Products are entitled to duty-free treatment pursuant to subheading 9801.00.20, HTSUS.

LAW AND ANALYSIS:

1. Amendment to Protest

With regard to whether Zenith may amend its protests, 174.14(a), Customs Regulations (19 CFR 174.14(a)), provides that:

A protest may be amended at any time prior to the expiration of the 90-day period within which such protest may be filed determined in accordance with 174.12(e). The amendment may assert additional claims pertaining to the administrative decision which is the subject of the protest, or may challenge an additional administrative decision relating to the same category of merchandise which is the subject of the protest. For the presentation of additional grounds or arguments in support of a valid protest after the 90-day period has expired see 174.28.

174.28, Customs Regulations (19 CFR 174.28), which provides:

In determining whether to allow or deny a protest filed within the time allowed, a reviewing officer may consider alternative claims and additional grounds or arguments submitted in writing by the protesting party with respect to any decision which is the subject of a valid protest at any time prior to disposition of the protest....

Zenith submits that the Products previously entered into the U.S. duty-paid, which were warehoused in Chicago, and then moved to Partes, are entitled to duty-free treatment under subheading 9801.00.20, HTSUS. Zenith has submitted its additional ground in writing in its letters dated October 7 and 8, 1996, to the Supervisory Import Specialist. For most of the entries under protest the October 7 and 8, 1996 additional ground was submitted to Customs well after the 90-day period set forth in 19 CFR 174.14(a). Thus, Customs may consider Zenith's additional ground, as set forth in the October 7 and 8, 1996 letters, only if its an additional ground asserted against a valid claim set forth in its protests.

The representative protest submitted to this office asserts that the appraised value of all the imported merchandise was incorrect. Additionally, Zenith stated that "...in other cases, there was no 'importation' of the merchandise so that no duties would be owed." We do not find any language in the protest which raises the duty-free claim of subheading 9801.00.20, HTSUS. Thus, the protest does not "cryptic[ly], inartistic[ly], or poorly drawn," raise as a protested administrative decision the duty-free claim. See, Mattel, Inc. v. United States, 72 Cust. Ct. 257, C.D. 4547, 37 F. Supp. 955 (1974) and HRL 224447 dated September 26, 1996. Pursuant to the representative protest submitted, Zenith's letters claiming duty-free treatment pursuant to subheading 9801.00.20, HTSUS, were not timely submitted. Therefore, you may not consider this additional ground pursuant to 19 CFR 174.28.

2. Valuation

The preferred method of appraising merchandise imported into the U.S. is transaction value pursuant to 402(b) of the TAA. 402(b)(1) of the TAA provides, in pertinent part, that transaction value of imported merchandise is the "price actually paid or payable for the merchandise when sold for exportation to the United States," plus enumerated statutory additions including packing costs incurred by the buyer. 402(b)(1)(A) of the TAA.

-Related Parties:

Imported merchandise is appraised under transaction value only if the buyer and seller are not related, or if related, the transaction value is deemed to be acceptable. In this situation, one of Zenith's foreign vendors, Lucky Goldstar, is a related party pursuant to 402(g)(1) of the TAA. 402(b)(2)(B) of the TAA provides that transaction value between related parties is acceptable only if an examination of the circumstances of the sale indicates that the relationship between the parties does not influence the price actually paid or payable, or the transaction value of imported merchandise closely approximates the transaction value of identical or similar merchandise in sales to unrelated buyers in the U.S. or the deductive or computed value for identical or similar merchandise. Although you did not specifically seek advice regarding whether the relationship between Zenith and Lucky Goldstar affects the price of the imported merchandise, we feel a brief discussion of this issue is warranted.

Under the circumstances of sales approach, if the parties buy and sell from one another as if they were unrelated, transaction value will be considered acceptable. Thus, if the price is determined in a manner consistent with normal industry pricing practice, or with the way the seller deals with unrelated buyers, the price actually paid or payable will be deemed not to have been influenced by the relationship. Furthermore, the price will not be influenced if it is shown that the price is adequate to ensure recovery of all costs plus a profit that is equivalent to the firm's overall profit realized over a representative period of time in sales of merchandise of the same class or kind. Statement of Administrative Action, reprinted in Customs Valuation under the Trade Agreements Act of 1979, Department of the Treasury, U.S. Customs Service (October 1981) at 54; 152.103(j)(2), Customs Regulations (19 CFR 152.103(j)(2)).

Counsel states that Zenith and Lucky Goldstar buy and sell from one another as if they were unrelated. As evidence of this practice, Zenith provided two sets of invoice for two different products. The invoices show that Zenith paid Lucky Goldstar the same price for each product before (invoice dated September 6, 1995, for part number 597-106A; and invoice dated September 22, 1995, for part number 521-250S) and after the parties became related (invoice dated January 24, 1996, for part number 597-106A; and invoice dated January 1, 1996, for part number 521-250S). Thus, Counsel contends that transaction value is acceptable between Zenith and its related foreign vendor, Lucky Goldstar.

A similar argument was raised in HRL 545272 dated August 17, 1995, in which the importer argued that the sale between the related parties should be used for determining the transaction value of the imported merchandise because the parties allegedly dealt with each other at arm's length as though they were unrelated. In support of this position, the imported stated that a 1986 sales agreement between the parties was negotiated at a time when the parties were not related and that the pricing of the merchandise remained in effect subsequent to 1989 even after the parties became related. In determining that this evidence was insufficient to justify that the related dealt with each other as if unrelated, HRL 545272 stated:

Based on the above, it appears when that the joint venture was formed, the corporate relationship between [the related parties] may not have immediately effected the price of the existing products. However, for a transaction to be truly arm's length, a pricing scheme cannot stay in effect indefinitely because market conditions can change over time. The original sales contract was negotiated in 1986 and 1987, but the actual sales of the [imported products] occurred several years later, such as in the sample entry provided by the Office of Regulatory Audit, where the transaction occurred in 1991. To ensure that prices of the products are kept current, the parties may have to review the prices and make adjustments. At some point, the parties may even have to renegotiate with each other. In other words, we believe that even though the prices for some the [imported products] were initially set when they were unrelated, it does not necessarily establish that the relationship between [the related parties] did not influence the price of the [imported product] over an indefinite period of time. The fact that the prices remained unchanged over a period over several years is some indication that the relationship may have influenced the price. In order for Customs to accept the transfer price, additional evidence of its validity is needed.

It is our opinion that HRL 545272 is applicable to this situation. The mere fact that the prices remain unchanged before and after Zenith and Lucky Goldstar became related is not prima facie evidence that the parties relations did not influence the price. This fact must be examined along with other evidence regarding the circumstances of sale to determine whether transaction value is an acceptable method of appraisement between the related parties. As no other evidence or positions were presented by your office or Zenith, we have not formulated on opinion on this issue.

-Sale for export and Mexican packing costs:

In this situation, we first need to examine whether a sale for exportation to the U.S. occurred between Zenith and the foreign vendors. For Customs purposes, the word "sale" generally is defined as a transfer of ownership in property from one party to another for a consideration. J.L. Wood v. United States, 62 CCPA 25, 33 C.A.D. 1139 (1974). While J.L. Wood was decided under the prior appraisement statute, Customs adheres to this definition under the TAA. The primary factors to consider in determining whether there has been a transfer of property or ownership are whether the alleged buyer has assumed the risk of loss, and whether the buyer has acquired title to the imported merchandise. See, Headquarters Ruling Letter (HRL) 544775 dated April 3, 1992, and HRL 543633 dated July 7, 1987. Also relevant is whether, in general, the roles of the parties and circumstance of the transaction indicate that the parties are functioning as buyer and seller. See, HRL 545474 dated August 25, 1995.

A similar factual situation was addressed in HRL 544230 dated December 22, 1988, in which the imported merchandise was entered into the U.S. from El Salvador under a Transportation and Exportation Bond and then shipped to Mexico for a retail packaging operation. After the packaging operation, the merchandise was imported into the U.S. for retail sale. In that ruling, Customs determined that the sale for exportation occurred between the El Salvador seller and the U.S. importer and that the packing operation in Mexico did not alter that conclusion. HRL 544230 determined that the Mexican packaging operation fell within the statutory definition of packing costs set forth in 402(h)(3) of the TAA, which states:

the cost of all containers and coverings of whatever nature and of packing, whether for labor or materials, used in placing the merchandise in condition, packed ready for shipment to the United States.

The imported merchandise was not packed ready for shipment to the United States until it was packaged in Mexico. Thus, the transaction value was based on the price paid to the seller with an addition for the packing operation performed in Mexico pursuant to 402(b)(1)(A) of the TAA.

Additionally, in HRL 545254 dated November 22, 1994, Customs held that a sale between a foreign company and a United States company which included an intermediate shipment through a Canadian bonded warehouse operation was a sale for exportation to the United States, and transaction value was determined to be the proper method of appraisement. Thus, the fact that the goods in the subject transactions were first shipped to Canada and placed in a bonded warehouse, did not preclude the use of transaction value. HRL 545254 stated that no contingency of diversion existed with regard to an alternative disposition of the goods in Canada. Namely, the merchandise which did not meet the quality standards was not sold in Canada but was removed from the bonded warehouse and returned to the exporter.

However, Customs found transaction value inapplicable as a means of appraisement in HRL 546069 dated August 1, 1996, where cheese, intended for the United States market, was shipped through Holland and placed in a bonded warehouse for inspection to ensure the cheese met contract specifications before its final shipment to the United States. If the cheese did not meet specifications, it could be sold in the European market. Given those facts Customs found that the evidence submitted did not establish that the cheese was destined for the United States market.

Based on the above-cited precedent, it is our opinion that the Products are sold for exportation and destined for the United States at the time Zenith purchased them from the Asian sellers. Zenith has submitted purchase orders, invoices, packing lists, Customs Forms and bills of lading as evidence that the Products are sold for exportation and destined for the United States at the time Zenith purchased the Products from the Asian sellers. Both the purchase orders and invoices indicate that the terms of sale or shipping terms are FOB Asian shipping port through Los Angeles to McAllen, Texas. Thus, the Products are destined to the U.S. at the time of purchase. Additionally, the bills of lading show shipment from Asia to the United States and Zenith as the consignee, who is responsible for paying the shipping costs. Title to the Products is transferred from the foreign vendors to Zenith at the time the Products are loaded onto the vessels bound for the U.S. The foreign vendors receive payment for the Products shortly after the Products are loaded aboard a vessel bound to the United States through letters of credit. Zenith has also submitted copies of Customs Form 7512, Transportation Entry and Manifest of Goods Subject to Customs Inspection and Permit for Transportation and Exportation class of entry, as evidence that they are importer of record when making entry into the U.S.

Additionally, in HRL 545368 dated July 6, 1995, Customs examined a number of factors to ascertain whether imported hair dryers were clearly destined for the United States in determining whether a sale for exportation took place between the foreign manufacturer and the middleman. In this case the imported products exclusively used English on their packaging and on the care manual; they contained UL safety label on the packaging; they used 110-volt electrical current, which is not used outside of North America; they incorporated a circuit interruption device, which is required only in the U.S.; they used U.S. trademarks on the product and product packaging and statements on the shipping documents showed that the merchandise was to be delivered to the importer in the U.S. Thus, Customs held that the products were clearly destined for the United States. As the manufacturer and middleman were unrelated and it was presumed that they negotiated at arm's length, Customs determined that the transaction value was based upon the price actually paid or payable by the middleman to the manufacturer.

With regard to the Products being destined for the United States, we find that the Products are similarly situated to the hair dryers in HRL 545368. Zenith submitted a sample of an imported accessory, "SpaceSound,"as evidence that its Products are destined to the United States at the time of purchase. The Product and its packaging comply with U.S. Customs country of origin marking requirements in that it carries the statement, in English, that the Product is "Made in China." Zenith's trademark for the Product, its copyrighted logo, and Zenith's name appear, in English, on the Product, its packaging, and user's manual. Zenith states that, when mandated by U.S. law, the Products possess safety features, such as circuit interrupter devices, which are required in the United States but are not required in other countries, including Mexico. Counsel notes that the sample accessory carries a UL safety label and a Federal Communications Commission product identification number. Thus, an examination of the Product and its packaging indicates that it is destined to the United States. Counsel states that all of its Products are treated in a manner similar to the submitted sample.

Based on the evidence submitted, the Products which are imported in-bond through the U.S. and then re-packaged in Mexico for importation in the U.S. are clearly destined for the United States at the time Zenith purchased them from the Asian vendors. Similar to HRL 544230, we find that the imported merchandise is not packed ready for shipment to the United States until it has been packaged in Mexico. It is our opinion that the costs incurred in Mexico, temporary storage and handling, are integral to this packing operation and, therefore, meet the statutory definition of packing costs in 402(h)(3) of the TAA. The packing costs are a statutory addition to the price actually paid or payable pursuant to 402(b)(1)(A) of the TAA. The Products are appraised pursuant to transaction value under 402(b) of the TAA based on the price actually paid or payable between Zenith and the foreign vendors with an addition for the packing costs incurred by Zenith in Mexico.

-Buying Agent:

We note that in acquiring the Products from the foreign vendors, Zenith on occasion uses Buying Agents. Counsel states that Zenith provides these agents with product specifications and requirements and the terms which Zenith will accept. Thus, the agents act on behalf of Zenith in seeking and securing vendors. As a general matter, bona fide buying commissions are not added to the price actually paid or payable. Pier 1 Imports, Inc. v. United States, 708 F. Supp. 351, 13 CIT 161, 164 (1989). The existence of a bona fide buying commission depends upon the relevant factors of the individual case. J.C. Penney Purchasing Corp. v. United States, 451 F. Supp. 973 (Cust. Ct. 1978). In this regard the importer has the burden of proving the existence of a bona fide agency relationship and that payments to the agent constitute bona fide buying commissions. Rosenthal-Netter, Inc. v. United States, 679 F. Supp. 21, 23, 12 CIT 77, 78 (1988). Since the buying agency issue was not raised in this request and no evidence was submitted, we have not formulated a position as to whether it is dutiable.

3. Subheading 9801.00.20

We previously found in 1 of this ruling that pursuant to the representative protest, the protests may not be amended to include the duty-free claim under subheading 9801.00.20, HTSUS. However, if you find that a protest timely and properly raises the subheading 9801.00.20, HTSUS, issue, the analysis below should be used in your disposition of the protest.

Subheading 9801.00.20, HTSUS, provides for the duty-free treatment of:

[a]rticles, previously imported, with respect to which the duty was paid upon such previous importation ... if (1) reimported, without having been advanced in value or improved in condition by any process of manufacture or other means while abroad, after having been exported under lease or similar use agreements, and (2) reimported by or for the account of the person who imported it into, and exported it from, the United States.

The predecessor of subheading 9801.00.20, HTSUS, was item 801.00 of the Tariff Schedules of the United States (TSUS). That particular provision was amended in 1984 to provide for, inter alia, articles that had been exported under "similar use agreements" and leases to entities other than foreign manufacturers. Trade and Tariff Act of 1984, Pub. L. No. 98-573, 118, 98 Stat. 4922 (1984). Before the amendment, duty-free treatment applied only to merchandise that had been exported under lease to foreign manufacturers.

In this case Zenith claims that the Products qualify for duty-free treatment under subheading 9801.00.20, HTSUS, as a "similar use agreement." Based upon the information presented, the Products imported from Mexico were being reimported by or for the account of the person who imported them into, and exported them from, the United States, namely Zenith. Furthermore, while in Mexico, the Products were stored and repackaged for return to the U.S. and Partes was compensated for the storage service in lump sum payments from Zenith. Thus, while in Mexico the Products were not advanced in value or improved in condition by any process of manufacture or other means.

In regard to whether the parts and accessories were exported under a lease or similar use agreement, it is our opinion that the agreement between Zenith and Partes is not a lease as Zenith did not grant Partes with the right to use the parts and accessories in exchange for periodic payments. Rather, Zenith is the party that is paying Partes for its services. See Werner & Pfleiderer Corp. v United States, 17 CIT 916, 918 (1993), citing to Black's Law Dictionary 889 (6th ed. 1990) defining a "lease" as, "a contract by which one owning ... property grants to another the right to possess, use and enjoy it for specified period of time in exchange for periodic payment."

However, it is our opinion that the relationship between Zenith and Partes is a bailment agreement for Partes to hold and repackage the goods until they are needed by Zenith's customers. See HRL 222863 dated July 1, 1991. The term "bailment" is defined as:

[a] delivery of goods of personal property, by one person to another, in trust for the execution of a special object upon or in relation to such goods, beneficial either to the bailor or bailee or both, and upon a contract, express or implied, to perform the trust and carry out such object, and thereupon either to redeliver the goods to the bailor or otherwise dispose of the same in conformity with the purpose of the trust. Black's Law Dictionary 129 (5th ed. 1979).

Therefore, in the spirit of the liberal interpretation of subheading 9801.00.20, HTSUS, we find that this bailment arrangement is a "similar use agreement" within the meaning of subheading 9801.00.20, HTSUS, and that the Products are eligible for duty-free treatment under subheading 9801.00.20, HTSUS, provided you are satisfied that the Products for which free entry are claimed were duty-paid on a previous importation. See 19 CFR 10.108.

HOLDING:

Based on the representative protest submitted, Zenith may not amend its protest by adding its additional ground that the Products previously entered into the U.S., which were warehoused in Chicago, and then moved to Partes, are entitled to duty-free treatment under subheading 9801.00.20, HTSUS, pursuant to 19 CFR 174.28.

Based on the evidence presented, the Products are clearly sold for exportation to the U.S. from the foreign vendors. Thus, assuming transaction value is acceptable, the Products are appraised under 402(b) of the TAA based on the price actually paid or payable between Zenith and the foreign vendors. The packing costs incurred by Zenith and paid to the Mexican related party are to be added to the price actually paid or payable in determining transaction value.

If a protest timely and properly raises the subheading 9801.00.20, HTSUS, claim, it is our opinion that the Products are eligible for duty-free treatment under subheading 9801.00.20, HTSUS. In order to receive duty-free treatment under this tariff provision, no specific documents are required; rather, the importer must establish to your satisfaction that the statutory requirements have been met.

This decision should be mailed by your office to the internal advice requester no later than 60 days from the date of this letter. On that date the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Informational Act and other public access channels.

Sincerely,


Acting Director
International Trade Compliance
Division