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HQ 226271




August 30, 1995

CON-9-09-R:C:E 226271 JRS

CATEGORY: BONDS ENTRY

David R. Ostheimer, Esq.
Lamb & Lerch
233 Broadway
New York, NY 10279

RE: Applicability of subheading 9813.00.30, HTSUS, to temporary importation under bond of motor vehicles which were originally produced in the United States for testing, evaluation and review purposes.

Dear Sir:

This is in response to your request for a ruling, on behalf of your client, BMW of North America, Inc. (BMW NA), on the applicability of a Temporary Importation Bond (TIB) for the limited purpose of testing, evaluation and review of one specific BMW model vehicle, namely the Z-3 Roadster. Our decision follows.

FACTS:

BMW NA manufactures in the United States the BMW Z-3 Roadster, which is designed and destined for sale in foreign countries. It is intended that some of these U.S.-manufactured vehicles, after having been exported to a foreign country and inspected, titled and registered there, will be reimported into the United States for the limited purpose of testing, evaluation and review under subheading 9813.00.30, HTSUS. These vehicles are to be reexported from the United States within the time period permitted by the terms of the bond.

In your ruling request you state that the BMWs will be provided, on a temporary basis, to automotive journalists, promotional companies and authorized new car dealers for the sole purpose of obtaining the consumer's reaction to the vehicle. Each person who test drives the BMW Z-3 model will be asked to provide a detailed evaluation of the vehicle. This BMW model presently is not produced for the U.S. market and BMW NA would like to test American reaction to this specific model for possible future production. We acknowledge receipt of the "Roadster Technical Evaluation Form."

There are approximately 220 of these BMW Z-3 Roadsters to be covered by a TIB. During the entire time period these vehicles will be in the United States, they will be owned and controlled by the importer, BMW NA, and they will be maintained at the various BMW dealerships located throughout the United States. It will be a requirement for every BMW dealer who receives one of the vehicles imported under a TIB to provide to, and request the completion of, the testing and evaluation form from each and every person who test drives the BMW Z-3 Roadster. Approximately 350 BMW dealers will participate in this testing and evaluation program with each respective dealer maintaining physical custody of these Roadsters for a period of 7 to 10 days.

ISSUE:

Whether motor vehicles, which were originally produced in the United States, are eligible for temporary importation under bond under subheading 9813.00.30, HTSUS.

LAW AND ANALYSIS:

Subheading 9813.00.30, HTSUS, provides for articles intended solely for testing, experimental or review purposes, including specifications, photographs and similar articles for use in connection with experiments or for study.

Generally, articles imported under bond may not be imported for the purpose of sale or sale on approval. Qualifying articles may be imported and entered, temporarily free of duty under bond, for an initial one-year period, which can be extended by the district director for no more than a total importation period of three years. At the end of the authorized importation period the articles must be exported or destroyed under Customs supervision. See U.S. Note 1(a) of Subchapter XII, Chapter 98, HTSUS.

A review of Customs decisions under subheading 9813.00.30, HTSUS, and its predecessors (namely, item 864.30, TSUS, and section 308(4), Tariff Act of 1930), does not disclose any restriction regarding the status of the imported article, such as its country of origin, in order to qualify under this provision. There is no indication that the term "articles" used in this provision was intended to be more restrictive than how it is used in other chapters of the harmonized tariff schedule. See U.S. Note 2 to Chapter 98, HTSUS, which states: "In the absence of a specific provision to the contrary, the tariff status of an article is not affected by the fact that it was previously imported into the customs territory of the United States and cleared through customs whether or not duty was paid upon such previous importation." Since the term "articles" in subheading 9813.00.30, HTSUS, is not qualified by a modifier, we conclude that articles are not restricted to those of foreign origin. The articles must only be "imported." Therefore, the fact that the articles in question were produced in the United States does not preclude the entry of these articles under subheading 9813.00.30, HTSUS.

What is controlling under subheading 9813.00.30, HTSUS, is whether there is a legitimate test, experiment, or review of the imported article within the meaning of the law. See generally Customs Service Decisions (C.S.D.) 82-64, 83-45 and 84-59. How the vehicles themselves are to be tested or how they are to be used in connection with a test or a review is the focus of whether the articles are eligible for temporary entry under this particular subheading.

The Roadster Technical Evaluation Form submitted covers 40 different vehicle characteristics to be rated on a scale of 1 to 5, with each criteria supplemented by a comments/remarks section. It also includes a section for comments regarding malfunction/failure, proposed changes for improvement as well as personal satisfaction. It is clear from the Evaluation Form that there is an intention to test the article itself. BMW NA states that it will tabulate the results of the testing and evaluation form and prepare a report which will be provided to the manufacturer. Modifications based upon the results of the report, where practicable, will be made to the vehicles prior to their production sale within the United States.

The long-held Customs Service position has been that pure consumer market tests are ineligible under the noted subheading because they are not legitimate "tests" of the article. We do not view this test to be purely a consumer marketing test. In HQ 223971, dated May 22, 1992, Customs held that the evaluation of the American riders' reaction to the high-speed train is an essential element in the testing phase of the high-speed train technology. In this case, the evaluation of the American consumers' reaction to the drivability, design and comfort of the Z-3 Roadster which has been originally designed and destined for sale in foreign countries is an essential element in the testing phase of the suitability of this model's sale in the United States. We find that this type of testing to determine the American driver's reaction to the BMW Z-3 Roadster constitutes a legitimate test within the meaning of the law and is not a pure market test which is precluded under this subheading. Accordingly, this model, the BMW Z-3 Roadster, is eligible for entry under subheading 9813.00.30, HTSUS.

HOLDING:

The BMW Z-3 Roadster originally produced in the United States may be reimported into the United States under a TIB which qualifies for admission under subheading 9813.00.30, HTSUS. Please note that this ruling does not address the applicability of any EPA or DOT requirements upon entry.

Sincerely,

John Durant, Director Commercial Rulings Division

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