HQ 224708 - Request for reconsideration of HQ 224133 concerning substitution same condition drawback on merchandise marketed specifically towards foreigners visiting the U.S.; 19 U.S.C. 1313(j)(2); 19 CFR 191.141(h); 19 CFR 191.53. - United States International Trade Commision Rulings

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HQ 224708

May 6, 1994

DRA-4 CO:R:C:E 224708 TLS

CATEGORY: ENTRY

Mr. James Geraghty
Donohue and Donohue
26 Broadway
New York, New York 10004

RE: Request for reconsideration of HQ 224133 concerning substitution same condition drawback on merchandise marketed specifically towards foreigners visiting the U.S.; 19 U.S.C. 1313(j)(2); 19 CFR 191.141(h); 19 CFR 191.53.

Dear Mr. Geraghty:

The above-referenced request has been received by this office for our consideration. We have considered the points raised in your submissions, and our decision follows.

FACTS:

The facts here are as they were in HQ 224133 except for a couple of notes. First, certain VCRs subject to the ruling could not be used to record in the U.S., only to playback tapes. Also, certain video cameras could not be used to play back video recordings on NTSC compatible televisions or VCRs, as they operate only on the PAL system. Secondly, documentation has been furnished as evidence that the Federal Communications Commission (FCC) has recognized the subject merchandise as not being likely or practical to be used in the United States. As a result, the FCC has waived the claimant of having to comply with its regulations requiring closed-caption decoding circuitry for television broadcast receivers with picture screens 13 inches or larger in diameter that are manufactured in or imported into the U.S.

In addition, the claimant will require a purchaser of any of the subject items to complete a "Customer Export Declaration" to comply with the requirements of various federal agencies, including Customs. The declaration requires the consumer to furnish his name, country of citizenship, passport number, local phone number, flight number, date of departure from the U.S., date of declaration, and signature. The retail dealer must furnish on the same document the model number, serial number, the dealer's name, product description, name and address of supplier, dealer number, the claimant's compliance officer's name, and the dealer's telephone number. All other facts are taken to be what they were at the time of the original ruling request.

The claimant requests a reconsideration of the finding that it must comply with Exporter's Summary Procedure (ESP) requirements and a waiver of some those requirements.

ISSUE:

Whether the circumstances noted here are in accordance with the requirements under 19 CFR 191.53 and the Exporter's Summary Procedure.

LAW AND ANALYSIS:

To reiterate what is required of claimants and exporters of merchandise upon which drawback will be claimed where a waiver of notice to export has been obtained, we note the following:

[T]he claimant will need to furnish to Customs, among other evidence, the location where the supporting evidence will be kept, ports where future exports will take place, and the mode of export transportation used in each export. See Customs Directive 3740-007 (April 21, 1992). It would also have to maintain of evidence of the date of export, which particular carrier it was exported on, and something equivalent to an air waybill (such as an airline ticket stub or boarding pass) as proof of exportation. Such evidence would be needed if Customs chooses to verify the exportation. The claimant would need to obtain much of this evidence from the exporter. Customs ruling HQ 224133 (April 19, 1993).

You state that because it is impossible to have thousands of individuals customers/exporters maintain records or take other steps to facilitate drawback claims, the exporters under the proposed scenario should be allowed a waiver of the requirement to maintain those records. The reasons given are that it is unrealistic to have the exporters do such, and the warranty cards to be furnished with the customer exporter declaration would obviate the need for such. We do not agree.

While we recognize the improbability of having consumer/exporters of the subject merchandise maintain records concerning the exportation for Customs purposes, we are in no position to grant a waiver of ESP requirements. ESP is designed to facilitate claims for drawback regardless of who the exporter happens to be. There exists no legal basis for granting a waiver of those requirements in this case when other claimants under ESP must meet them.

Furthermore, limiting the claims to warranty cards dated no more than six weeks after purchase would not guarantee that the articles would not be used while in this country. In addition, if Customs were to grant a waiver in this situation, it would reserve the right to periodically examine the merchandise before exportation. Complying with this would seem to be problematic for the claimant at the least and unworkable on a practical level. The claimant would have no control over the articles to be exported and could not make them available for examination after they have been purchased. Therefore, we are compelled to find that the above-described proposal would not meet the requirements for ESP claims.

HOLDING:

The proposed scenario does not comply with 19 CFR 191.53 and the claimant is not eligible for Exporter's Summary Procedure. This ruling is limited to the facts of this case.

Sincerely,

John Durant, Director

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