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November 1, 1994

HQ 225552

DRA-4-CO:R:C:E 225552 CB

CATEGORY: DRAWBACK

Mr. William J. LeClair
Trans-Border Customs Services Inc.
P. O. Box 800
Champlain, NY 12919

RE: Unused Merchandise Drawback; 19 U.S.C. ?1313(j)(1); NAFTA Implementation Act

Dear Mr. LeClair:

This is in response to your letter dated July 1, 1994, wherein you requested a ruling on behalf of your client, Werner Lueck, Inc. ("Werner"), regarding the availability of unused merchandise drawback for certain machinery.

FACTS:

You state Werner imported several machines from Germany in 1993 for the purpose of making furniture. These machines were set up and tested to assure that they functioned, however, no production ever resulted through use of the machines. Due to lack of orders and interest in the U.S. for the end product, Werner will be disassembling the machines for return to Germany.

In response to our inquiry, your client states that the machinery was installed by engineers from Luck Gmbh, a company owned by two of the shareholders of Werner. the machinery was designed for production of cushions in high volume. Afterwards, Werner realized that the machinery had been installed in the wrong location to service the North Carolina market which is where all of the company's potential customers were situated. Accordingly, no sales resulted and the equipment remained idle from the time of installation. The installation was performed between August 10, 1993, and August 25, 1993. According to Werner, limited trial runs were performed during September and October 1993. Samples were produced by hand using one sewing machine and no use was ever made of the primary equipment since there were no orders or sales. It is estimated that the equipment was run for 10 hours or less only to test its functionality.

ISSUE:

Whether the subject machinery is eligible for unused merchandise drawback.

LAW AND ANALYSIS:

The applicable law is found in section 632, title VI - Customs Modernization, Public Law 103-182, the North American Free Trade Implementation Act (107 Stat. 2057), enacted December 8, 1993. Title VI of that Act amended 19 U.S.C. ?1313(j). Section 692 of the Act provides that Title Vi provisions take effect on the date of enactment.

Section 632 of the new act changes same condition direct identification drawback by providing that imported merchandise for which duty was paid and is, before the close of the 3-year period beginning on the date of importation, exported or destroyed under custom supervision and is not used within the United States before such exportation or destruction is eligible for "unused merchandise drawback." The law no longer requires that the merchandise be in the same condition as when imported.

A definition of the term "unused merchandise" was not provided in the language of the new act. However, in Customs Service Decision ("C.S.D.") 81-222 and C.S.D. 82-135 it was found that an article is used when it is employed for the purpose for which it was manufactured or intended. An article is also "used" when it is used in the manufacture or production of another article. See C.S.D. 81-179. The performance of certain operations or combination of operations (such as testing, cleaning, and inspecting) on the imported item, not amounting to a manufacture or production, is not treated as a use of the merchandise.

Rather, the law now provides that "[t]he 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. . . shall not be treated as a use of that merchandise for purposes of . . ." applying unused merchandise drawback. See 19 U.S.C. ?1313(j).

In the instant case, your client asserts that the machinery was only subjected to limited trial runs which lasted 10 hours or less. This would be considered an operation or combination of operations not amounting to a manufacture or production which is permissible under the statute. Therefore, the machinery would be eligible for drawback under 19 U.S.C. ?1313(j)(1).

HOLDING:

The machinery, which was merely tested, is eligible for drawback under 19 U.S.C.

Modernization, of the North American Free Trade Implementation Act, P. L. 103-182.

Sincerely,

John Durant, Director
Commercial Rulings Division

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