CLA-2 CO:R:C:S 557755 WAS
District Director
U.S. Customs Service
300 S. Ferry Street
Terminal Island
Los Angeles, CA 90731
RE: Application for Further Review of Protest No. 2720-93- 101191; concerning the applicability of subheading 9801.00.10, HTSUS, to Ray Ban sunglasses
Dear Sir:
This is in reference to the above-referenced Application for
Further Review which was timely filed by Grunfeld, Desiderio
Lebowitz & Silverman on behalf of Yan's Optical Corp., concerning
the applicability of subheading 9801.00.10, Harmonized Tariff
Schedule of the United States (HTSUS), to Ray Ban sunglasses,
which are a product of Bausch & Lomb.
FACTS:
Protestant contests Customs assessment of duties on certain
sunglasses classified under 9004.10.0000, HTSUS, at 7.2 percent
ad valorem. Protestant claims that the sunglasses should be
entered free of duty under subheading 9801.00.10, HTSUS, as
American Goods Returned.
Representatives of Bausch & Lomb were contacted by your
office in an effort to obtain the specific model numbers for each
pair of sunglasses in the subject entries. Your office also
asked Bausch & Lomb representatives to identify the specific
location where the sunglasses at issue may have been produced.
In a telefax from Bausch & Lomb dated May 24, 1993, a
representative stated that based on the style numbers which are
the subject of this protest, the sunglasses may have been
produced in more than one country. The representative from
Bausch & Lomb also stated that the origin of the sunglasses can
be determined based on the product marking. According to the
Bausch & Lomb representative, the marking consists of a four
digit code that is stamped on the same end of the Ray Ban box as
the product name and catalog number. The third and fourth digit
of the "code" identify the manufacturing site for the sunglasses.
Bausch & Lomb also provided a list of the manufacturing sites
world-wide for the sunglasses which it produces.
The importer also submitted a letter written by Mr. Vartan
Yaghsezian, President of High Fashion Optical, located in
Tarzana, CA, dated May 5, 1993, in which he certifies that the
eleven cartons of sunglasses imported from Singapore under
invoice No. HFB-200/93, were made by Bausch & Lomb in Rochester,
New York. However, Mr. Yaghsezian states that "[a]t this moment
we do not have any proof of export because we are not the
exporters of this product."
ISSUE:
Whether the Ray Ban sunglasses are eligible for duty-free
treatment under subheading 9801.00.10, HTSUS, when returned to
the U.S.
LAW AND ANALYSIS:
Subheading 9801.00.10, HTSUS, provides for the duty-free
entry of U.S. products that are exported and returned without
having been advanced in value or improved in condition by any
means while abroad. Articles satisfying the above conditions of
the statute will be afforded duty-free treatment, provided the
documentary requirements of section 10.1, Customs Regulations (19
CFR 10.1), are met.
Compliance with section 19 CFR 10.1(a) is mandatory and a
condition precedent to recovery unless compliance has been waived
or is impossible. Maple Leaf Petroleum, Ltd. v. United States,
25 CCPA 5, T.D. 48976 (1937). The basis for waiver of the
required documentation is predicated on the district director
being satisfied by the production of other evidence as to the
American origin of the merchandise and its eligibility under
subheading 9801.00.10, HTSUS. According to 19 CFR 10.1(d), if
the district director is reasonably satisfied, based on the
nature of the articles or production of other evidence, that the
articles were imported in circumstances meeting the requirements
of subheading 9801.00.10, HTSUS, the district director may waive
the requirements of producing the documents specified above.
In the instant case, the record clearly shows that your
office was not satisfied that the Ray Ban sunglasses imported by
Yan's Optical Corp. were of U.S. origin. Information submitted
by your office indicates that, as part of consideration of the
protest, Customs has not had an opportunity to examine actual
samples of sunglasses from the five entries which are under
protest as counsel for the importer stated that the merchandise
has already been sold. Moreover, the samples that were examined
from two other entries which were not protested did not possess a
location code on the retail hangtag and/or retail box. Thus, for
these samples, there was no way to properly identify the country
where the sunglasses were produced. According to your office,
the protest and attachments thereto constitute insufficient
documentation to support a claim for duty-free treatment under
subheading 9801.00.10, HTSUS.
The courts have held that, to receive duty-free treatment
under this tariff provision, the merchandise must be positively
identified as having been previously exported American goods, and
it must be shown that no allowance of drawback was made upon
exportation. Border Brokerage Co. v. United States, 59 Cust. Ct.
289, C.D. 3143 (1967). Moreover, it has been held that
merchandise is not entitled to free entry as American goods
returned where the Certificate of Exportation has not been filed
or its production waived or proved impossible and the evidence
offered in substitution thereof is insufficient. A.E.
Coppersmith v. United States, 50 Cust. Ct. 8, C.D. 2381 (1963).
In this case, compliance with the documentary requirements
of 19 CFR 10.1(a) was not waived by your office, the protestant
has not established impossibility of compliance, and the evidence
submitted in support of the protest is insufficient to establish
that the merchandise was manufactured in the U.S. Therefore, we
find that the Ray Ban sunglasses are not entitled to free entry
under subheading 9801.00.10, HTSUS.
HOLDING:
In view of the insufficient evidence submitted by the
protestant and the fact that the documentary requirements of 19
CFR 10.1 have not been satisfied or waived, the Ray Ban
sunglasses do not qualify for the duty exemption available under
subheading 9801.00.10, HTSUS. Accordingly, the protest should be
denied.
In accordance with Section 3A(11)(b) of Customs Directive
099 3550-065, dated August 4, 1993, Subject: Revised Protest
Directive, this decision together with the Customs Form 19,
should be mailed by your office to the protestant no later than
60 days from the date of this letter. Any reliquidation of the
entry in accordance with the decision must be accomplished prior
to mailing of the decision. Sixty days from the date of the
decision 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, Lexis, Freedom of Information Act and other
public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division