DRA-1-09-RR:IT:EC 225874 GOB

Joseph P. Cravero, Esq,
Senior Tax Attorney
Deere & Company
John Deere Road
Moline, Illinois 61265-8098

RE: Unused merchandise drawback; NAFTA drawback; Painting; Repackaging; 19 U.S.C. 1313(j)(1); 19 CFR 181.43 - 181.45

Dear Mr. Cravero:

FACTS:

This is in response to your letter dated November 23, 1994.

Your letter describes the factual situations which are stated in the ISSUES section of this ruling.

ISSUES:

1. For drawback purposes, in determining the origin of fungible goods or materials for all of its shipments, may an exporter choose any one of the four inventory methods listed in Schedule X of the Appendix to 19 CFR Part 181 (hereinafter referred to as "Schedule X") for Customs purposes and continue using that method for the remainder of the exporter's fiscal year, regardless of the type of inventory method the exporter uses for accounting purposes?

2. Are the following within the meaning of "use" or "in the same condition" within the meaning of 19 U.S.C. 1313(j)(3) and 19 CFR 181.45(b), respectively: (a) the painting of imported parts with John Deere identifying colors; and (b) the repackaging or "kitting" of parts?

3. Whether the following transactions are eligible for unused merchandise drawback under 19 U.S.C. 1313(j)(1):

a. Goods imported into the U.S. from one foreign source (origin determined by the use of one of the four inventory methods listed in Schedule X) and subsequently exported to one foreign destination (e.g., CZ to MZ).

b. Goods imported into the U.S. from one foreign source (origin determined by the use of one of the four inventory methods listed in Schedule X) and subsequently exported to more than one foreign destination (e.g., CZ to MX and BR).

c. Goods imported into the U.S. from more than one foreign source (origin determined by the use of one of the four inventory methods listed in Schedule X) and subsequently exported to one foreign destination (e.g., JP and DE to MX).

d. Goods imported into the U.S. from more than one foreign source (origin determined by the use of one of the four inventory methods listed in Schedule X) and subsequently exported to more than one foreign destination (e.g., JP and DE to MX and BR).

e. Goods imported into the U.S. from more than one foreign source, as well as sourced domestically (origin determined by the use of one of the four inventory methods listed in Schedule X) and subsequently exported to one foreign destination (e.g., JP, DE and US to MX).

f. Goods imported into the U.S. from more than one foreign source, as well as sourced domestically (origin determined by the use of one of the four inventory methods listed in Schedule X) and subsequently exported to more than one foreign destination as well as being used for domestic sales (e.g., JP, DE and US to MX, BR and US).

LAW AND ANALYSIS:

Pertinent statutory and regulatory provisions are as follows.

19 U.S.C. 1313(j)(1) and (3) provide as follows:

(j) Unused merchandise drawback

(1) If imported merchandise, on which was paid any duty, tax, or fee imposed under Federal law because of its importation- (A) is, before the close of the 3-year period beginning on the date of importation- (i) exported, or (ii) destroyed under customs supervision; and (B) is not used within the United States before such exportation or destruction; then upon such exportation or destruction 99 percent of the amount of each duty, tax, or fee so paid shall be refunded as drawback. The exporter (or destroyer) has the right to claim drawback under this paragraph, but may endorse such right to the importer or any intermediate party. * * * * * (3) The performing of any operation or combination of operations (including, but not limited to, testing, cleaning, repacking, inspecting, sorting, refurbishing, freezing, blending, repairing, reworking, cutting, slitting, adjusting, replacing components, relabeling, disassembling, and unpacking), not amounting to manufacture or production for drawback purposes under the preceding provisions of this section on- (A) the imported merchandise itself in cases to which paragraph (1) applies, or (B) the commercially interchangeable merchandise in cases to which paragraph (2) applies, shall not be treated as a use of that merchandise for purposes of applying paragraph (1)(B) or (2)(C).

With respect to exportations to Canada and Mexico, section 203 of the North American Free Trade Agreement (NAFTA) Implementation Act (Public Law 103-182; 107 Stat. 2057, 2086; 19 U.S.C. 3333), provides for the treatment of goods subject to NAFTA drawback. Section 203(a) provides in pertinent part as follows:

(a) Definition of a Good Subject to NAFTA Drawback - For purposes of this Act and the amendments made by subsection (b), the term "good subject to NAFTA drawback" means any imported good other than the following: (1) A good entered under bond for transportation and exportation to a NAFTA country. (2) A good exported to a NAFTA country in the same condition as when imported into the United States. For purposes of this paragraph- (A) processes such as testing, cleaning, repacking, or inspecting a good, or preserving it in its same condition, shall not be considered to change the condition of the good, and * * * * *

The Customs Regulations issued under the authority of the NAFTA Implementation Act specifically provide for the availability of drawback on the exportation of merchandise to a NAFTA country.

19 CFR 181.43 provides:

181.43 Eligible goods subject to drawback.

Except as otherwise provided in this subpart, drawback is authorized for an imported good that is entered for consumption and is: (a) Subsequently exported to Canada or Mexico (see 19 U.S.C. 1313(j)(1)); (b) Used as a material in the production of another good that is subsequently exported to Canada or Mexico (see 19 U.S.C. 1313(a)); or (c) Substituted by a good of the same kind and quality as defined in 181.44(c) of this subpart and used as a material in the production of another good that is subsequently exported to Canada or Mexico (see 19 U.S.C. 1313(b)).

19 CFR 181.44(a) provides:

181.44 Calculation of drawback.

(a) General. Except in the case of goods specified in 181.45 of this part, drawback of the duties previously paid upon importation of a good into the United States may be granted by the United States, upon presentation of a NAFTA drawback claim under this subpart, on the lower amount of: (1) The total duties paid or owed on the good in the United States; or (2) The total amount of duties paid on the exported good upon subsequent importation into Canada or Mexico.

19 CFR 181.44(g), promulgated by Treasury Decision 95-68 and published in the Customs Bulletin on September 20, 1995, provides:

(g) Unused goods under 19 U.S.C. 1313(j)(1) that have changed in condition. An imported good that is unused in the United States under 19 U.S.C. 1313(j)(1) and that is shipped to Canada or Mexico not in the same condition within the meaning of  181.45(b)(1) may be eligible for drawback under this section, except when the shipment to Canada or Mexico does not constitute an exportation under 19 U.S.C. 1313(j)(4).

19 CFR 181.45 provides in pertinent part:

181.45 Goods eligible for full drawback.

(a) Goods originating in Canada or Mexico. A Canadian or Mexican originating good that is dutiable and is imported into the United States is eligible for drawback without regard to the limitation on drawback set forth in 181.44 of this part if that originating good is:

(1) Subsequently exported to Canada or Mexico; (2) Used as a material in the production of another good that is subsequently exported to Canada or Mexico; or (3) Substituted by a good of the same kind and quality and used as a material in the production of another good that is subsequently exported to Canada or Mexico. ... (b) Claims under 19 U.S.C. 1313(j)(1) for goods in same condition. A good imported into the United States and subsequently exported to Canada or Mexico in the same condition is eligible for drawback under 19 U.S.C. 1313(j)(1) without regard to the limitation on drawback set forth in 181.44 of this part. ... (1) Same condition defined. For purposes of this subpart, a reference to a good in the "same condition" includes a good that has been subjected to any of the following operations provided that no such operation materially alters the characteristics of the good: (i) Mere dilution with water or another substance; (ii) Cleaning, including removal of rust, grease, paint or other coatings; (iii) Application of preservative, including lubricants, protective encapsulation, or preservation paint; (iv) Trimming, filing, slitting, or cutting; (v) Putting up in measured doses, or packing, repacking, packaging, or repackaging; or (vi) Testing, marking, labelling, sorting or grading. (2) Commingling of fungible goods - (i) General. Commingling of completely fungible goods in inventory, such as parts, is permissible (see 191.141(e) of this chapter) but one must identify entries for designation for same condition drawback; the origin of the goods shall be determined on the basis of the inventory methods set forth in the Appendix to this part. ...

Issue 1

You have not provided us with sufficient information for us to respond to this issue. The kind of information which we would need to respond to this issue would include a description of the type of inventory which you use for accounting purposes and the inventory management method in Schedule X which you would propose to use. We would also like to see an analysis of how these methods would differ for drawback purposes.

Issue 2

The issues herein are as follows: are the following within the definition of "use" or "in the same condition" within the meaning of 19 U.S.C. 1313(j)(3) and 19 CFR 181.45(b), respectively: (a) the painting of imported parts with John Deere identifying colors; and (b) the repackaging or "kitting" of parts?

Your letter states as follows, in pertinent part:

Deere imports a number of parts of varying colors and characteristics for use on its many pieces of agricultural, industrial, and lawn and grounds care equipment and/or use as parts. In a number of situations, Deere will import a specific part and paint the part with identifying "John Deere" colors for use on John Deere equipment. Thereafter, and prior to its use in the United States, Deere may export that part for sale or use outside the United States.

In other situations, Deere may import a number of specific parts (i.e. parts "A", "B" and "C") for use on pieces of John Deere equipment. Prior to their use in the United States, Deere may have to "repackage" the parts (that is, for example, put parts A, B and C in one package and call it "D") before exporting those parts from the United States for use or sale abroad. Thus, Deere may use the exported parts (in the same condition as they were imported) on pieces of John Deere equipment or "repackage" or "kit" the parts together for exportation and either use or sale outside the United States prior to their being used in the United States.

Painting of Imported Parts with John Deere Identifying Colors

19 U.S.C. 1313(j)(3)

The court in International Paint Co., Inc. v. United States, 18 Cust. Ct. 105 (1947), aff'd 35 C.C.P.A. 87 (1948), repeated the classic definition of the term "manufacture", stated by the court in Ishimitsu v. United States, 11 Ct. Cust. Appls. 186, T.D. 38963 (1921):

...to constitute a manufacture of a thing, or a thing manufactured, it must appear that something has been produced so changed or advanced in condition from what it was before being subjected to the processing or treatment that whether of only one material or of more than one, it has attained a distinctive name, character or use, different from that originally possessed by the material or materials before being subjected to the manufacturing process. (Emphasis supplied.)

Painting is not listed within 19 U.S.C. 1313(j)(3) as one of the operations which "shall not be treated as a use of that merchandise for purposes of" 19 U.S.C.(j)(1) or (j)(2). However, 19 U.S.C. 1313(j)(3) contains the language "including, but not limited to, testing, cleaning..." It is our determination that the painting of John Deere parts with John Deere identifying colors is not a use for the purposes of 19 U.S.C. 1313(j)(1) and (j)(2) because the painted part has not attained a distinctive name, character, or use which is different from the part before it is painted.

We emphasize, however, that this determination relates to use, within the meaning of 19 U.S.C. 1313(j), the unused merchandise drawback statute. This determination does not relate to the same condition requirement of 19 CFR 181.45(b).

19 CFR 181.45(b)

The issue here is whether after the John Deere parts are painted with John Deere identifying colors in the United States and then exported to Canada or Mexico, the parts are in the same condition as they were when imported.

Pertinent parts of 19 CFR 181.45(b) are excerpted supra. 19 CFR 181.45(b)(1) defines "same condition." We determine that the parts, as described in the previous paragraph, are not in the same condition when exported as they were when imported.

19 CFR 181.45(b)(1)(iii) provides that the "[a]pplication of preservative, including lubricants, protective encapsulation, or preservation paint" are operations which a good may be subjected to and still be in the same condition provided that no such operation materially alters the characteristics of the good. We find it to be significant that "painting" itself is not included in this list. We consider painting to be an operation of greater magnitude than the operations stated in 19 CFR 181.45(b)(1)(iii). Painting is more than the application of a preservative, including lubricants, protective encapsulation, or preservation paint. We believe that if painting were intended to be within the scope of 19 CFR 181.45(b)(1), it would have been clear from the language of 19 CFR 181.45(b)(1). This is not the case. As stated supra, we consider painting to be an operation of greater magnitude than the operations stated in 19 CFR 181.45(b)(1).

Accordingly, because the parts are not exported in the same condition as they were imported, they are not eligible for drawback pursuant to 19 CFR 181.45(b).

We note, however, that these parts may be eligible for drawback pursuant to 19 CFR 181.44(g).

Repackaging of Parts

19 U.S.C. 1313(j)(3)

Deere's repackaging is described supra. Deere also refers to this activity as "kitting." The parenthetical phrase of 19 U.S.C. 1313(j)(3), which describes operations which, if they do not amount to a manufacture or production for drawback purposes. shall not be treated as a use for purposes of 19 U.S.C. 1313, includes, but is not limited to, inter alia, "repacking" and "unpacking."

We find that the repackaging described by Deere is within the scope of 19 U.S.C. 1313(j)(3) such that such repackaging is not a use for the purposes of 19 U.S.C. 1313(j)(1) and (j)(2). The repackaging described by Deere is essentially the same as, or is the same as, "repacking" within the meaning of 19 U.S.C. 1313(j)(3).

19 CFR 181.45(b)

19 CFR 181.45(b)(1), which defines "same condition" for the purpose of the pertinent regulations is excerpted supra. 19 CFR 181.45(b)(1)(v) includes "packing, repacking, packaging, or repackaging." We find that the repackaging of parts by Deere is within the scope of 19 CFR 181.45(b)(1)(v) such that parts which are repackaged by Deere are in the same condition provided that the repackaging operation does not materially alter the characteristics of the parts. No evidence has been submitted which would indicate that the characteristics of the parts would be materially altered by the repackaging.

Issue 3

a. The facts, supra, state that the goods were imported into the United States from Czechoslovakia, a non-NAFTA country, and exported to Mexico, a NAFTA country. Because the goods do not originate in Canada or Mexico, 19 CFR 181.45(a) does not apply. Pursuant to 19 CFR 181.45(b), if the goods are exported to Canada or Mexico (the facts herein have the goods being exported to Mexico) in the same condition as imported, the goods are eligible for drawback pursuant to 19 U.S.C. 1313(j)(1) without regard to the limitation of 19 CFR 181.44. The facts do not provide information with respect to whether or not the goods are in the same condition upon export as they were upon import. Same condition is defined in 19 CFR 181.45(b)(1). See 19 CFR 181.44(g) with respect to unused goods under 19 U.S.C. 1313(j)(1) that have changed in condition. See 19 CFR 181.45(b)(2) with respect to the commingling of fungible goods.

b. The facts, supra, state that the goods were imported into the United States from Czechoslovakia, a non-NAFTA country, and exported to Mexico, a NAFTA country, and Brazil, a non-NAFTA country. Because the goods do not originate in Canada or Mexico, 19 CFR 181.45(a) does not apply. With respect to the goods exported to Brazil, 19 CFR 181.43, 181.44, and 181.45 do not apply. The "normal" or non-NAFTA requirements of 19 U.S.C. 1313(j)(1) apply. For example, the goods do not have to be exported in the same condition as imported and the goods may not be used within the United States before exportation. With respect to the goods exported to Mexico, pursuant to 19 CFR 181.45(b), if they are exported in the same condition as imported, the goods are eligible for drawback pursuant to 19 U.S.C. 1313(j)(1) without regard to the limitation of 19 CFR 181.44. The facts do not provide information with respect to whether or not the goods are in the same condition upon export as they were upon import. Same condition is defined in 19 CFR 181.45(b)(1). See 19 CFR 181.44(g) with respect to unused goods under 19 U.S.C. 1313(j)(1) that have changed in condition. See 19 CFR 181.45(b)(2) with respect to the commingling of fungible goods.

c. The facts, supra, state that the goods were imported into the United States from Japan and Denmark, both non-NAFTA countries, and exported to Mexico, a NAFTA country. Because the goods do not originate in Canada or Mexico, 19 CFR 181.45(a) does not apply. With respect to the goods exported to Mexico, pursuant to 19 CFR 181.45(b), if they are exported in the same condition as imported, the goods are eligible for drawback pursuant to 19 U.S.C. 1313(j)(1) without regard to the limitation of 19 CFR 181.44. The facts do not provide information with respect to whether or not the goods are in the same condition upon export as they were upon import. Same condition is defined in 19 CFR 181.45(b)(1). See 19 CFR 181.44(g) with respect to unused goods under 19 U.S.C. 1313(j)(1) that have changed in condition. See 19 CFR 181.45(b)(2) with respect to the commingling of fungible goods.

d. The facts, supra, state that the goods were imported into the United States from Japan and Denmark, both non-NAFTA countries, and exported to Mexico, a NAFTA country and Brazil, a non-NAFTA country. Because the goods do not originate in Canada or Mexico, 19 CFR 181.45(a) does not apply. With respect to the goods exported to Brazil, 19 CFR 181.43, 181.44, and 181.45 do not apply. The "normal" or non-NAFTA requirements of 19 U.S.C. 1313(j)(1) apply. For example, the goods do not have to be exported in the same condition as imported. The goods may not be used within the United States before exportation. With respect to the goods exported to Mexico, pursuant to 19 CFR 181.45(b), if they are exported in the same condition as imported, the goods are eligible for drawback pursuant to 19 U.S.C. 1313(j)(1) without regard to the limitation of 19 CFR 181.44. The facts do not provide information with respect to whether or not the goods are in the same condition upon export as they were upon import. Same condition is defined in 19 CFR 181.45(b)(1). See 19 CFR 181.44(g) with respect to unused goods under 19 U.S.C. 1313(j)(1) that have changed in condition. See 19 CFR 181.45(b)(2) with respect to the commingling of fungible goods.

e. The facts, supra, state that the goods were imported into the United States from Japan and Denmark, both non-NAFTA countries, as well as sourced domestically, and subsequently exported to Mexico, a NAFTA country. Because the goods do not originate in Canada or Mexico, 19 CFR 181.45(a) does not apply. With respect to the goods imported from Japan and Denmark which were exported to Mexico, pursuant to 19 CFR 181.45(b), if the goods are exported in the same condition as imported, the goods are eligible for drawback pursuant to 19 U.S.C. 1313(j)(1) without regard to the limitation of 19 CFR 181.44. The facts do not provide information with respect to whether or not the goods are in the same condition upon export as they were upon import. Same condition is defined in 19 CFR 181.45(b)(1). See 19 CFR 181.44(g) with respect to unused goods under 19 U.S.C. 1313(j)(1) that have changed in condition. The facts state that the origin of the goods is "determined by use of one of the four inventory methods listed in Schedule X." 19 CFR 181.45(b)(2) is pertinent. Commingling of completely fungible goods in inventory is permissible, but one must identify entries for designation for same condition drawback and the origin of the goods shall be determined on the basis of the inventory methods set forth in Schedule X to the Appendix, 19 CFR Part 181.

f. The facts, supra, state that the goods were imported into the United States from Japan and Denmark, both non-NAFTA countries, as well as sourced domestically, and subsequently exported to Mexico, a NAFTA country, Brazil, a non-NAFTA country, as well as being used for sales within the United States. With respect to the goods exported to Brazil, 19 CFR 181.43, 181.44, and 181.45 do not apply. The "normal" or non-NAFTA requirements of 19 U.S.C. 1313(j)(1) apply. For example, the goods do not have to be exported in the same condition as imported. The goods may not be used within the United States before exportation. Because the goods do not originate in Canada or Mexico, 19 CFR 181.45(a) does not apply. With respect to the goods imported from Japan and Denmark which were exported to Mexico, if the goods are exported in the same condition as imported, the goods are eligible for drawback pursuant to 19 U.S.C. 1313(j)(1) without regard to the limitation of 19 CFR 181.44. The facts do not provide information with respect to whether or not the goods are in the same condition upon export as they were upon import. Same condition is defined in 19 CFR 181.45(b)(1). See 19 CFR 181.44(g) with respect to unused goods under 19 U.S.C. 1313(j)(1) that have changed in condition. The facts state that the origin of the goods is "determined by use of one of the four inventory methods listed in Schedule X." 19 CFR 181.45(b)(2) is pertinent. Commingling of completely fungible goods in inventory is permissible, but one must identify entries for designation for same condition drawback and the origin of the goods shall be determined on the basis of the inventory methods set forth in Schedule X to the Appendix, 19 CFR Part 181.

HOLDINGS:

Issue 1

We do not have sufficient information to respond to this issue. Issue 2

The painting of John Deere parts with John Deere identifying colors is not a use for purposes of 19 U.S.C. 1313(j)(1) and (j)(2).

Parts which are painted with John Deere identifying colors after importation into the United States and before exportation from the United States are not in the same condition within the meaning of 19 CFR 181.45(b) when exported as they were when imported.

The repackaging described by Deere is within the scope of 19 U.S.C. 1313(j)(3) such that such repackaging is not a use for the purposes of 19 U.S.C. 1313(j)(1) and (j)(2).

The repackaging of parts by Deere is within the scope of 19 CFR 181.45(b)(1)(v) such that parts which are repackaged by Deere are in the same condition when exported as they were when imported provided that the repackaging operation does not materially alter the characteristics of the parts.

Issue 3

See a. through f. under Issue 3 in the LAW AND ANALYSIS section.

All determinations herein are limited to the specific facts presented.

Sincerely,

Director,
International Trade Compliance
Division