OT:RR:CFT:ER WAS
Mr. Gregory Alvarez
Area Port Director
U.S. Customs and Border Protection
9901 Pacific Highway
Blaine, WA 98230
RE: Application for Further Review of Protest Number 3004-09-100092; Denial of duty exemption under subheading 9801.00.60, HTSUS; CF 4455; Certificate of Registration
Dear Mr. Alvarez:
This is in reference to your memorandum dated January 19, 2010, whereby you forwarded an Application for Further Review of Protest Number 3004-09-100092, timely filed by Livingston International, Inc. (“protestant”), which contests the denial of the duty exemption under subheading 9801.00.60, Harmonized Tariff Schedule of the United States (HTSUS), in connection with various display materials imported from Canada into the United States. Our decision follows.
FACTS:
Initially, we note that the protest dated December 22, 2009, is timely inasmuch as it was filed within 180 days from the September 4, 2009, liquidation of the subject entries. The protestant also meets the criteria for further review. The customs regulations pertaining to protests are found in 19 C.F.R. Part 174. Under 19 C.F.R. § 174.24, further review shall be accorded a party when the decision against which the protest was filed, among other things, is alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee, or with a decision made at any port with respect to the same or substantially similar merchandise. Under 19 C.F.R. § 174.26(b)(iii), a protest with an application for further review shall be reviewed (as pertinent to the grounds under which further review was requested in this matter) by the Commissioner of Customs or his designee if the protest and application for further review raise an issue involving the interpretation of a court decision or ruling of the Commissioner of Customs or his designee. Additionally, 19 C.F.R. § 174.25(b)(3) states that the application for further review (AFR) shall contain:
a statement of any facts or additional legal arguments, not part of the record, upon which the protesting party relies, including the criterion set forth in § 174.24 which justifies further review.
The protestant states that its justification for its AFR is that CBP’s action is inconsistent with its previous rulings with respect to merchandise imported under substantially similar circumstances. The protestant further states that the merchandise, which is the subject of this protest, was imported under circumstances similar to those described in ruling number HQ 557707, dated May 4, 1994, in which CBP found the merchandise to be eligible for duty free entry under 9801.00.60. This statement provided by the protestant is sufficient to establish the criterion for further review set forth in 19 CFR § 174.24. Accordingly, the protestant’s AFR is granted because the protest and application for further review raise an issue involving the interpretation of a ruling of the Commissioner of CBP or his designee, which the protestant states is inconsistent with the present case. See 19 CFR § 174.25(b)(1)(iii).
The record shows that the protestant filed entry numbers 300-xxxxxxx-6, dated April 15, 2009; 300-xxxxxxx-0, dated June 18, 2009; and 300-xxxxxxx-5, dated June 12, 2009, and claimed on the entries that the merchandise was shipped to Vancouver, British Columbia for display at the From Sweden with Love Tour, Hydrogen and Fuel Cells 2009 Conference, and 2009 International MUSE Conference, respectively. Therefore, upon importation into the United States, the protestant claimed that the merchandise was subject to the duty-free exemption under subheading 9801.00.60, HTSUS. U.S. Customs and Border Protection (CBP) at the Port of Blaine, Washington denied duty-free treatment and the protestant filed protest number 3004-09-100092 on December 22, 2009. The Port of Blaine denied the protest inasmuch as the protestant did not provide sufficient documentation to substantiate its claim under subheading 9801.00.60, HTSUS. The Port stated that “The importer did not provide evidence that a declaration on Customs Form 4455 Certificate of Registration for articles of either domestic or foreign origin was presented to U.S. Customs and Border Protection (CBP) at the time of entry in accordance with 19 CFR § 10.66(a)(2) . . . ” The petitioner filed an Application For Further Review of the protest with the Port of Blaine, Washington on December 22, 2009.
The following documents were submitted with the three entries at issue in this AFR:
Entry Number 300-xxxxxxx-6:
Temporary Admission Permit - 809-SHOW-09-0016-1;
Canada Customs Invoice for the Volvo XC60;
Canada Customs Invoice for the other show materials; and
CBP Form 4455 (signed by Amy Salick, Agent and IOR, unsigned by CBP officer).
Entry Number 300-xxxxxxx-0:
Temporary Admission Permit – 809-SHOW-09-0030-9;
Canada Customs Invoice for the cut-away Nissan Xtrail fuel cell vehicle;
Export Form from Mendelssohn showing shipment from Nissan Transport Canada, Hydrogen & Fuel Cells, Vancouver Convention & Exhibition Center, Vancouver, BC. The form stated that “the merchandise herein described was imported from the United States and that it was sent to Vancouver for temporary use at the exhibition; and
CBP Form 4455” (signed by Amy Salick, Agent and importer of record, unsigned by CBP officer).
Entry Number 300-xxxxxxx-5:
Canada Customs Entry – 10280-xxxxxxxx5;
Canada Customs Invoice – for carpet, tools other metal articles, tape, vacuum cleaner and furniture;
Export Form from Mendelssohn showing shipment from GES Exposition Services in Vancouver Convention and Exhibition Center to GES Exposition Services in Renton, WA for 938 packages. The form stated that “the merchandise herein described was imported from the United States and that it was sent to Vancouver for temporary use at the exhibition;
Bill of Lading for 938 packages of display material from GES Exposition Services (Vancouver Convention & Exhibition Center) to GES Exposition Services, Renton, WA; and
CBP Form 4455 (signed by Amy Salick, Agent and importer of record, unsigned by CBP officer).
In support of its position in the request for further review that the three entries at issue qualify for duty-free entry under subheading 9801.00.60, HTSUS, the protestant relies on ruling HQ 557707, dated May 4, 1994. The protestant points out that in HQ 557707 the importer did not file either a Certificate of Exportation (CBP Form 3311) or a Certificate of Registration (CBP Form 4455) at the time of entry and the claim for subheading 9801.00.60, HTSUS, was permitted. The protestant argues that inasmuch as the circumstances in HQ 557707 are substantially the same as the case at issue, the entries should also be eligible for duty-free treatment under that provision. The documentation submitted with the entries included Temporary Admission Permits, Canadian Customs invoices, and, in some cases, bills of lading. However, the protestant failed to submit both a CBP Form 4455 signed by CBP or a CBP Form 3311 at the time of entry.
ISSUE:
Whether the merchandise covered by entry numbers 300-XXXXXXX-6, 300-XXXXXXX-0 and 300-XXXXXXX-5 that was exported to Canada for exhibition and subsequently imported into the United States is eligible for duty-free treatment under subheading 9801.00.60, HTSUS.
LAW AND ANALYSIS:
Subheading 9801.00.60, HTSUS, provides for the free entry of articles that are returned after having been exported for temporary use abroad solely for exhibition or use in connection with any public exposition, fair, or conference, provided such articles are returned by or for the account of the person who exported them. In connection with the entry of articles exported for temporary exhibition, and returned and claimed to be exempt from duty under subheading 9801.00.60, HTSUS, a certificate of exportation on CBP Form 3311, and a declaration of the importer on CBP Form 4455 for articles of either domestic or foreign origin are required to be filed at the time of entry. See 19 CFR § 10.66(a)(1) and (2).
Generally, a CBP Form 3311 is submitted at the time of exportation so that the port director may execute the bottom portion of the form. See, e.g., 19 CFR § 10.66(a)(1); see also HQ 557707. However, 19 CFR § 10.66(b) states that “[i]f it is shown to be impracticable to produce the certificate of exportation. . . , the port director may accept other satisfactory evidence of exportation, or may take a bond on a CBP Form 301, containing the bond conditions. . . to secure the production of such certificate or other evidence.”
Unlike the CBP Form 3311, there is no waiver of a CBP Form 4455 in 19 CFR § 10.66. Consequently, the CBP Form 4455 must be presented at the time of entry, which the protestant failed to do in this case. However, there is an exception to the requirement that the CBP Form 4455 must be presented at the time of entry in 19 CFR § 10.112. This subsection provides that “Whenever a free entry or a reduced duty document, form, or statement required to be filed in connection with the entry is not filed at the time of the entry or within the period from which a bond was filed for its production, but failure to file it was not due to willful negligence or fraudulent intent, such document, form, or statement may be filed at any time prior to liquidation of the entry or, if the entry was liquidated, before the liquidation becomes final. 19 CFR § 10.112. Therefore, if an importer fails to file the CBP Form 4455 at the time of entry, it is permitted to file this form prior to liquidation.
The claim for duty-free entry under subheading 9801.00.60, HTSUS, was denied by your office because you determined that the petitioner did not meet the requisite documentary requirements. Specifically, your office stated as follows:
The importer did not provide sufficient documentation to substantiate their claim under 9801.00.60 in accordance with 19 CFR 10.66. More specifically, the importer did not provide evidence that a declaration on Customs Form 4455 Certificate of Registration for articles of either domestic or foreign origin was presented to U.S. Customs and Border Protection (CBP) at time of entry in accordance with 19 CFR § 10.66(a)(2) as the documents submitted with the Protest were not endorsed by CBP.
The protestant cites HQ 557707 in support of its claim that the entries in this case should be eligible for duty-free treatment under subheading 9801.00.60, HTSUS. In HQ 557707, a lathe, previously imported into the United States from Taiwan, was exported to Mexico, along with another lathe and a milling machine to be shown at an exhibition. After the exhibition, one of the lathes was reimported into the United States and entered free of duty under subheading 9801.00.60, HTSUS. Initially, the claim for duty-free entry under subheading 9801.00.60, HTSUS, was denied because neither a Certificate of Exportation (CBP Form 3311) nor a Certificate of Registration (CBP Form 4455) was submitted with the entry. However, subsequent to the date of entry on April 27, 1994, the importer submitted the CBP Form 4455. In HQ 557707, CBP stated that “It is our opinion that the Shipper’s Export Declaration (SED) along with the Mexican entry is ‘other satisfactory evidence’ in place of CF 3311, which proves the lathe was exported from the U.S.” CBP held that the reference in 19 CFR § 10.66(b) to the bond conditions set forth in 19 CFR § 113.62 indicates that the CF 3311 “or other evidence” may be produced after entry.
Additionally, in HQ 557707, the CBP Form 4455 was not signed or certified by a CBP officer. The CBP Form 4455 indicated that a specific lathe, which was clearly identified by serial number, was being returned to the United States after originally being imported from Taiwan, and then exported to the Exposition in Monterey, Mexico. Inasmuch as the CBP Form 4455 was filed prior to the finality of liquidation, CBP found that the documentary requirements of subheading 9801.00.60, HTSUS, had been satisfied despite the fact that the CBP Form 4455 had not been signed. Id. The protestant maintains that based on the holding in HQ 557707, CBP should accept a declaration on a CBP Form 4455 that was not signed by any CBP officer for goods entered on a formal entry under subheading 9801.00.60, HTSUS. However, the facts in the present case and in HQ 557707 are distinguishable.
Unlike in HQ 557707, the protestant in this case has not provided sufficient “other evidence” to establish exportation. In HQ 557707, the protestant submitted the SED along with the Mexican entry. Thus, pursuant to 19 CFR § 10.66(b), the protestant established through the use of “other satisfactory evidence” that the subject merchandise was exported for exhibition, and therefore, the CBP Form 3311 was not required at the time of entry. Furthermore, in HQ 557707, we found that although the CBP Form 4455 was not submitted at the time of entry, the fact that it was filed prior to the finality of liquidation, satisfied the requirement under 19 CFR § 10.66(a). In the case at issue, the documentation submitted with the entries failed to establish that specific articles were, in fact, exported from the United States to Canada, that these specific articles were exported for display in Canada, and that these articles were the same that were subsequently reimported into the United States.
Since the documentation submitted with all three entries was essentially the same, we will focus on entry number 300-XXXXXXX-6. In connection with entry number 300-XXXXXXX-6 the protestant submitted the following documents: Temporary Admission Permit that enumerated “30 display materials;” Canadian Customs Invoice between Arnold Worldwide, Boston, MA and RMR Vancouver Station, Vancouver, BC, which included crates, boxes, ladder, dolly, cones, pylons, tables, tent and a Volvo XC60 vehicle. Also included with this entry was another Canadian Customs Invoice between Arnold Worldwide, Boston, MA and RMR Vancouver Station, Vancouver, BC, which included one Volvo XC60 Terra Bronze manufactured in 2008. The Certificate of Registration Form (CBP Form 4455) included with this entry was signed by Amy L. Salick, Agent & importer of record on behalf of Arnold Worldwide, Toronto, Ontario. The CBP Form 4455 listed “31 packages” and under the section entitled articles exported, it stated “see attached inventory list.” However, no inventory list was attached. Therefore, unlike in HQ 557707, the CBP Form 4455 in this case did not specifically list the articles that were being shipped to Canada for exhibition. In both the present case and HQ 557707, the CBP Form 4455 was not signed by a CBP officer. In HQ 557707, CBP accepted the form after the date of entry inasmuch as the protestant had submitted an SED together with other documents such as the Mexican entry that contained essentially all the information called for in the CBP Form 4455. However, in the present case, the protestant failed to submit an SED or “other satisfactory evidence of exportation” and the CBP Form 4455 was not sufficient to show what articles were being exported to Canada for exhibition. Therefore, because an inventory list was not included with the entry, CBP is unable to verify that the specific articles that were exported for exhibition are the same ones that were reimported into the United States.
A CBP Form 3311 was also not submitted with the entry documents or subsequent to the entry. The purpose of this form is to show that an article has been exported for temporary exhibition pursuant to subheading 9801.00.60, HTSUS. Furthermore, the Temporary Admission Permit also did not specifically list the merchandise that was sent to Canada. Unlike in HQ 557707, the protestant did not submit “other satisfactory evidence” such as an SED along with the properly executed Canadian entry documents to prove that the specific merchandise was exported from the United States. Therefore, because no “other satisfactory evidence” was submitted in lieu of the CBP Form 3311, the protestant has not established that these items were exported for display in Canada.
The Canadian Customs invoice indicated there were 30 packages/articles, including crates, boxes, tables, tents and vehicles. However, the CBP Form 4455 included 31 packages. Therefore, because the CBP Form 4455 was not verified by CBP and contained inconsistencies with the Canadian Customs invoice, the protestant has not established that the requirements for duty-free treatment under subheading 9801.00.60, HTSUS, has been established.
Inasmuch as the documentation submitted with the entries did not include an export declaration with a listing of the specific items being exported, did not clearly establish that these specific items were being exported for display in Canada, and that these same items were returned to the United States shortly after the exhibition, the protestant has not satisfied the documentation requirements of subheading 9801.00.60, HTSUS. Therefore, the claim for duty-free treatment under this provision is denied.
HOLDING:
Based on the information submitted, we find that the entries at issue in this case are not eligible for duty-free treatment under subheading 9801.00.60, HTSUS. Accordingly, Protest Number 3004-09-100092 is DENIED IN FULL for the reasons set forth in this decision.
In accordance with the Protest/Petition Processing Handbook, you are to mail this decision, together with the CBP Form 19, to the Protestant no later than 60 days from the date of this letter. Any reliquidation of the claim in accordance with the decision must be accomplished prior to mailing of the decision.
Sixty days from the date of the decision Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division