• Type : Entry • HTSUS :

OT:RR:CTF:EPDR H308215 ECG

Cris Wenthur
Wenthur Law Group, LLP
4121 Napier Street
San Diego, CA 92110

RE: Importation and dutiability of a yacht; exportation; 19 C.F.R. § 101.1; reimportation; 19 C.F.R. § 141.2.

Dear Mr. Wenthur:

This letter is in response to your ruling request of January 20, 2020, on behalf of Ithaka Charter, LLC, concerning potential duty liability on a yacht that was previously entered and duty-paid. Specifically, you inquire whether the yacht would become dutiable again if sailed out of the United States for cruising purposes and returned to the United States. Our decision is set forth below.

FACTS:

The vessel in question is a 63’ Nordhavn that was built by South Coast Marine Yacht Bldg, Ltd. in Xaimen, China in 2012. On February 8, 2013, it was imported into the United States by Pacific Asian Enterprises Inc. (“PAE”). The yacht was formally entered for consumption and all duties, taxes, and fees owed were paid by PAE. On May 30, 2013, the importer sold the yacht to Ithaka Charter, LLC (f/k/a Ithaka Journey, LLC) (“owner”), a U.S. company whose sole member is a U.S. citizen. The yacht was initially registered in the United States but, as of September 3, 2013, it has been registered in the Cayman Islands. The owner made this registration change because they were advised that a Cayman Islands registration was better for their personal security. The yacht has never been to the Cayman Islands and has not been imported into the Cayman Islands.

The yacht is an expedition trawler and is designed to travel very long distances at relatively slow speeds. The owner acquired the yacht for expedition pleasure cruising. The yacht owner states that they intended to take a long-term expedition cruise to South America upon purchasing the yacht, but at no point had any intent to sever the vessel from the mass of things belonging to the United States with the intention of uniting them to the mass of things belonging to any other foreign country. Rather, the owner states they only intended to go for the adventure cruise to South America and continue adventure cruising after the yacht finished this initial major voyage, but at all times intended to return to the United States. The yacht had the following cruising history as of the date of the ruling request:

May 3, 2013-September 15, 2013: California, United States September 15, 2013-January 24, 2014: Mexico January 24, 2014-April 30, 2014: Costa Rica April 30, 2014-February 1, 2015: Panama February 1, 2015-February 28, 2015: Columbia February 28, 2015-March 31, 2015: Ecuador March 31, 2015-May 15, 2015: Peru May 15, 2015-April 1, 2016: Chile, Patagonia, Falkland Islands, South Georgia Island April 1, 2016-November 1, 2016: Costa Rica November 1, 2016-June 1, 2018: California, United States June 1, 2018-January 20, 2020: Washington, United States and Canada

According to this cruising history, the yacht was located outside the territorial waters of the United States for just over three years - from approximately September 15, 2013, to November 1, 2016. During this three year period, the yacht did not remain in any one foreign country for over a year. Since November 1, 2016, the yacht has remained in the United States. The owner now desires to sell the yacht in the United States to another U.S. citizen.

ISSUE:

Whether the yacht was exported when sailed out of the United States for expedition pleasure cruising, and is dutiable upon its return to the United States.

LAW AND ANALYSIS:

The determination as to whether a yacht is dutiable when it has previously been subject to entry and payment of duty depends upon whether it has been exported from the United States after its first importation. Generally, “[d]utiable merchandise imported and afterwards exported, even though duty thereon may have been paid on the first importation, is liable to duty on every subsequent importation into the Customs territory.” See 19 C.F.R. § 141.2. However, if imported duty-paid goods are taken out of the Customs territory of the United States but not exported, then there is no importation upon their return to the Customs territory. See Headquarters Ruling Letter (“HQ”) H213415 (July 8, 2014) (“absent an exportation event, duties are not applicable and entry is not required for imported duty-paid merchandise returned to the United States”); HQ 114291 (May 7, 1998) (finding that “[i]f an article leaves the United States but is not deemed to be exported, then there is no importation upon its return to the United States).

Exportation, as defined in 19 C.F.R. § 101.1, requires a “a severance of goods from the mass of things belonging to this country with the intention of uniting them to the mass of things belonging to some foreign country.” Based on this definition, deciding whether an “exportation” has occurred is a two-step analysis, requiring assessment of whether: 1) the goods were severed

2 from the mass of things belonging to this country; and 2) there was an intent to unite the goods to the mass of things belonging to some foreign country. See HQ H213415. Both of these elements must be satisfied in order for merchandise to be exported - severance and intent must coincide to constitute an act of exportation. See generally Moore Dry Goods Co. v. United States, 11 Ct. Cust. App. 449 (1923).

The first element, severance, requires the goods to physically leave the United States. The severance of goods from the mass of things belonging to the country of exportation requires evidence that the “that the goods in question have been physically carried out of the country of exportation.” National Sugar Refining Co. v. United States, 488 F. Supp. 907, 908 (Cust. Ct. 1980). Here, it is not disputed that the yacht has been removed from the United States for expedition pleasure cruising. However, removal from the United States is not of itself sufficient to establish exportation. Absent intent to unite yachts with the mass of things belonging to a foreign country, “yachts would not be exported even if severed from the mass of things belonging to the United States.” HQ H213415. With respect to an imported and duty-paid yacht, CBP has consistently held that simply taking a vessel outside the territorial waters of the United States for a temporary foreign pleasure cruise with the intent to return the vessel to the United States does constitute an exportation despite the vessel’s physical removal from the United States. See Customs Service Decision 79- 85 (Sept. 27, 1978); HQ 112035 (May 20, 1992); HQ H213415. Additionally, the country of registration for a yacht temporarily removed from the United States is not determinative of exportation, but a factor to be considered among others. For example, in HQ 114301, dated March 18, 1998, a vessel had been previously imported and entered for consumption into the United States, and registered in the United States, but was subsequently registered in Canada. The change in country of registration was only one factor among others that did not preclude CBP from deciding the vessel was not exported when it sailed from the United States to the Bahamas on annual holiday cruises. Similarly, in the current case, even though the yacht is registered in the Cayman Islands, this fact does not of itself establish that an exportation has occurred when it was removed from the United States when sailed to foreign countries on expedition pleasure cruises. The second element, “intention of uniting . . . to the mass of things belonging to some foreign country,” requires a “bona fide purpose to seek a foreign market or an actual diversion of the merchandise into the commerce of an intermediate country.” 19 C.F.R. § 101.1; HQ H213415 (quoting Nassau Distributing Co., Inc. v. United States, 29 Cust. Ct. 151, 154 (1952) (internal citations omitted)). This element of exportation requires evidence that merchandise was intended to be, or actually, entered into the foreign country for consumption, sale or use. HQ H213415. The intent of the parties at the time of shipment abroad is the controlling factor in determining whether the shipment is an exportation. See HQ 114301 (citing F.W. Meyers & Co., Inc. v. United States, 29 Cust. Ct. 202, 203 (1952)). In the context of yachts, CBP has consistently held that absent evidence of seeking a foreign market and/or an actual diversion of the merchandise into the commerce of another country, exportation does not occur if a yacht is sailed into foreign countries temporarily with an intent of returning to the United States. See HQ H213415; HQ 111731 (Feb. 19, 1992). Looking again to HQ 114301, in that case although the vessel in question was registered in Canada it had never been sailed to Canada, and the vessel had remained berthed in the United States since its importation and entry when not used for annual

3 holiday cruises to the Bahamas. CBP concluded that the totality of the circumstances evidenced no intent to unite the yacht with the mass of things belonging to Canada, such that the yacht was never exported from the United States.

CBP has thus previously specifically considered both elements of exportation, severance and intent, in relation to yachts departing the United States for foreign countries on a pleasure cruise. To further illustrate, in HQ H319559, dated September 1, 2021, CBP considered whether a yacht that was imported and duty-paid, then sold to Australian citizens, would be dutiable if returned to the United States for sale after multiple extended sails to Canada and Mexico on cruising permits. After sailing to a foreign country, the Australian owners “regularly sailed back to United States waters for various lengths of time.” The yacht was being sailed in Mexico when the start of the COVID-19 pandemic prevented the owners from returning to the United States, specifically to Alaska and the Pacific Northwest, as had been their intention. CBP concluded that yacht had not been exported because the owners had consistently returned the yacht to the United States since its importation and duty payment, and “there [wa]s no evidence on the record that the owners attempted to sell, repair, or otherwise enter the yacht into foreign commerce while abroad.” In circumstances where an imported and duty-paid yacht has not been exported, CBP has clarified that “future transfers of ownership of a vessel that take place while it remains within the United States do not affect its duty-paid status.” HQ 110970 (July 17, 1990).

In the present case, the temporary removal of the yacht from the United States does not coincide with any intent to unite the yacht with the mass of things belonging to a foreign country by seeking a foreign market or through entry for consumption, sale, or use in a foreign country. Akin to the yachts at issue in HQ 114301 and HQ 319559, this yacht has only departed the United States for pleasure cruises, and has been consistently returned to the United States since its importation. Like the yacht at issue in HQ 114301, which was registered in Canada but had never been sailed to Canada, here the yacht is registered in the Cayman Islands but has never been sailed to the Cayman Islands. The yacht’s registration in a foreign country is thus not indicative of any intent to unite the yacht with the mass of things belonging to the Cayman Islands. In considering the totality of the circumstances, we thus find that the second element for exportation has not been satisfied – consequently, the subject vessel has not been exported from the United States within the meaning of 19 C.F.R. § 101.1. As no exportation has occurred, the vessel is not subject to duty upon its return to the United States because it is not re-imported. See 19 C.F.R. § 141.2. Further, the sale of the yacht to another U.S. citizen does not affect the yacht’s imported and duty-paid status. HQ 110970.

HOLDING:

Based on the above, we find that the yacht was not exported when sailed out of the United States for expedition pleasure cruising, and is not dutiable upon its return to the United States.

Please note that 19 C.F.R. § 177.9(b)(1) provides that “[e]ach ruling letter is issued on the assumption that all of the information furnished in connection with the ruling request and incorporated in the ruing letter, either directly, by reference, or by implication, is accurate and

4 complete in every material respect.” If any fact in the transaction varies from the facts stipulated to herein, this decision shall not be binding on CBP, as provided for in 19 C.F.R. § 177.9(b).

Sincerely,

Kristina Frolova, Chief
Entry Process & Duty Refunds Branch

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