OT:RR:CTF:VS H325290 EE
Center Director
Automotive and Aerospace Center of Excellence & Expertise
U.S. Customs and Border Protection
2813 Business Park Drive, BLDG I
Memphis, TN 38118
Attn: Ray A. Nunley
RE: Application for Further Review of Protest No. 3801-19-100578; Subheading 9801.00.10, HTSUS
Dear Center Director:
This is in reference to the Application for Further Review (“AFR”) of Protest No. 3801-19-100578, timely filed on August 28, 2019, on behalf of ZF TRW Canada Limited (hereinafter, the “protestant”), concerning the applicability of subheading 9801.00.10, Harmonized Tariff Schedule of the United States (“HTSUS”), to the merchandise at issue and for the collection of the merchandise processing fee (“MPF”) for the entry.
FACTS:
The merchandise subject to the protest at issue consists of certain plastic pallets, trays, and lids. The merchandise was entered on April 4, 2018 and liquidated on March 1, 2019. The protestant claims that the merchandise is eligible for the duty exemption in subheading 9801.00.10, HTSUS, which also allows the merchandise to be exempt from the MPF under 19 C.F.R. § 24.23(c)(1)(i). The protestant seeks reliquidation of the entries and a refund of duties and of the merchandise processing fees paid, with interest. Your office denied the protestant’s request for reliquidation stating that the model number stated on the Manufacturer’s Affidavit does not correspond to the model number for the imported merchandise. Further, the Declaration of Foreign Shipper does not match with the invoice information and the port and dates are not specific. In support of their claim, the protestant provided the following documentation:
- A list of the subject line item for each entry.
-A Declaration of Foreign Shipper issued by ZF TRW Canada stating that the articles were exported from the United States from the Port of Detroit or Port Huron, MI on or about February – April 2018 and that they were being returned without having been advanced in value or improved in condition by any process of manufacture or other means. The declaration lists the merchandise description, merchandise number, quantity, and value. The declaration also lists ZF TRW Canada’s address and a shipment identification number. The reason goods were returned stated on the form is “dunnage returned to Brembo Homer, MI to be reused”. The declaration is signed by an individual identified as a “Materials / Logistics Manager” and is dated August 20, 2018.
-The importer’s agent’s declaration stating that the foreign shipper’s declaration is true and correct and identifying the U.S. manufacturer of the goods and its location. The declaration further states that the goods “were not manufactured or produced in the United States under subheading 9813.00.05, HTSUS, and that the articles were exported from the United States without benefit of drawback.” The declaration is dated August 22, 2019 and refers to the list of entries for the shipment identification, and is signed by an “attorney-in-fact” of the importer’s agent and lists their address.
-The manufacturer’s affidavit, indicating that the goods at issue are of U.S. origin, that no drawback was claimed on the exportation of the merchandise, and that the merchandise was not advanced in value or improved in condition. The manufacturer’s affidavit contains a description of the merchandise as plastic trays TRWC0017, plastic pallets, and plastic lids. The affidavit is dated June 12, 2018. It is signed by a “Sales Facilitator” of the U.S. manufacturer.
-Commercial invoices dated April 3, 2018, April 5, 2018, April 10, 2018, April 17/18, 2018, April 19, 2018, April 24, 2018, April 26, 2018, May 1, 2018, May 8, 2018, and May 10, 2018, listing the vendor as TRW Canada Ltd., a consignee in Homer, MI, description of the merchandise as plastic base TRWP003, plastic trays TRWC0021/OCD86128 (Black 17”), plastic lids TRWL003, the quantity, the unit price, and the total price.
ISSUE:
Whether the merchandise is eligible for duty-free treatment under subheading 9801.00.10, HTSUS.
LAW AND ANALYSIS:
Section 904(b) of the Trade Facilitation and Trade Enforcement Act of 2015 (Pub. L. 114-125, February 24, 2016) amended subheading 9801.00.10, HTSUS, to include any products which are returned within 3 years after having been exported. Previously, subheading 9801.00.10, HTSUS, only applied to products of the United States. Subheading 9801.00.10, HTSUS, now provides for the duty-free treatment of:
Products of the United States when returned after having been exported, or any other products when returned within 3 years after having been exported, without having been advanced in value or improved in condition by any process of manufacture or other means while abroad.
In the instant case, the protestant states the plastic pallets, trays, and lids are products of the United States. The protestant cites to Headquarters Ruling Letter (“HQ”) 559598, dated March 12, 1996, for support of their position that subheading 9801.00.10, HTSUS, applies to the merchandise at issue. However, that ruling did not discuss the documentary requirements necessary for classification under subheading 9801.00.10, HTSUS, which are at issue. HQ 559598 merely stated that the vehicle at issue therein would qualify for duty-free entry under subheading 9801.00.10, HTSUS, “provided the documentary requirements of 19 CFR 10.1 are satisfied.” As such, HQ 559598 has no bearing on this matter.
Section 10.1, CBP Regulations (19 C.F.R. § 10.1) sets forth the documentary requirements for entry under subheading 9801.00.10, HTSUS. We note that CBP has not yet amended the regulations to implement the change to subheading 9801.00.10, HTSUS. Nonetheless, 19 C.F.R. § 10.1(a)(1) requires the foreign shipper to declare the following information with regard to articles in a shipment valued over $2,500: the port of exportation, the date of exportation, the quantity, the description of the merchandise, the value of the merchandise, the date of the declaration, and whether the articles were returned without having been advanced in value or improved in condition by any process of manufacture or other means. In addition, the documentation is to be filed “in connection with the entry.” As previously noted, the protestant has provided us with the foreign shipper’s declaration issued by ZF TRW Canada. As the port noted, the declaration contains inconsistent information. The declaration indicates that there are 80 base pallets for invoice no. WM1359. However, invoice no. WM1359, dated April 10, 2018, lists 60 plastic base pallets.
Section 10.1(a)(2), CBP Regulations (19 C.F.R. § 10.1(a)(2)), requires the owner, importer, consignee, or agent having knowledge of the facts regarding the claim for free entry to declare that the foreign shipper’s statement is true, and, that the articles were not manufactured or produced in the United States under subheading 9813.00.05, HTSUS, and that the articles were exported from the United States without benefit of drawback. The information required also pertains to the name of the manufacturer, the location of the manufacturer, and the date of the declaration. As the port noted, the affidavit contains inconsistent information. While the affidavit lists the merchandise as plastic trays TRWC0017, plastic pallets, and plastic lids, the invoices list the merchandise as plastic base TRWP003, plastic trays TRWC0021/OCD86128 (Black 17”), plastic lids TRWL003. The item number of the plastic trays listed on the declaration do not match the item number of the plastic trays on the invoices. Further, the description of the pallets and lids listed on the declaration are not sufficiently specific.
As the foreign shipper’s declaration and the manufacturer’s affidavit contain inconsistent information, 19 C.F.R. § 10.1(a)(1) is not satisfied. Accordingly, the merchandise is not eligible for duty-free treatment under subheading 9801.00.10, HTSUS.
HOLDING:
The merchandise at issue is not eligible for duty-free treatment under subheading 9801.00.10, HTSUS. The protest should be DENIED.
You are instructed to notify the protestant of this decision no later than 60 days from the date of this decision. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to this notification. Sixty days from the date of the decision, the Office of Trade, Regulations and Rulings will make the decision available to CBP personnel and the public on the Customs Rulings Online Search System (CROSS) at https://rulings.cbp.gov/, or other methods of public distribution.
Sincerely,
for Craig T. Clark, Director
Commercial and Trade Facilitation Division