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HQ 228751




March 20, 2002

CON-9-09-CON-9-14-RR:CR:DR
228571 IOR

CATEGORY: CONDITIONALLY FREE

Port Director
U.S. Customs Service
11099 S La Cienega Blvd.
Los Angeles, CA 90045

Attn: Jan Jarvis, FNIS

RE: Internal Advice; 9813.00.15, HTSUS; 9813.00.25, HTSUS; 9813.00.30, HTSUS; 9813.00.75, HTSUS; non-complying motor vehicles; TIB; original equipment manufacturer; OEM; DOT; 49 CFR 591.5

Dear Sir:

We are in receipt of your request for internal advice, dated February 29, 2000, regarding foreign-made vehicles, imported into the U.S. for filming of commercials.

FACTS:

Foreign-made vehicles, not intended for sale in the U.S. are being brought into the U.S. for the filming of commercials which will be shown abroad. The vehicles are imported by either a U.S. or foreign-based original equipment manufacturer (OEM). Generally the vehicles are non-complying with federal standards.

In the past, these vehicles have been entered under TIB provisions, 9813.00.15, 9813.00.30, and 9813.00.75, HTSUS. When the vehicles have been entered under subheading 9813.00.15, HTSUS, the photographer was shown as the importer of record and the OEM as the consignee. The Department of Transportation (DOT) has permitted the entry of the vehicles under these circumstances, if an OEM was the importer of record, or the importer had prior permission for the importation.

You ask whether the vehicles can be temporarily imported under the described subheadings, and by whom, and whether the vehicles can be entered by a consumption entry under subheading 8703, HTSUS. You have provided us with a DOT “Declaration” form for the “Importation of Motor Vehicles and Motor Vehicle Equipment Subject to Federal Motor Vehicle Safety, Bumper and Theft Prevention Standards” (rev. 9-99) (“DOT Declaration”).

ISSUE:

Whether the vehicles qualify for importation under a temporary importation bond. Whether the vehicles can be entered by a consumption entry.

LAW AND ANALYSIS:

With respect to the importation of motor vehicles, the Department of Transportation (DOT) regulations, 591.5 (49 CFR 591.5), provide, in pertinent part, as follows:

No person shall import a motor vehicle or item of motor vehicle equipment into the United States unless, at the time it is offered for importation, its importer files a declaration, in duplicate, which declares one of the following:

(b) The vehicle or equipment item conforms with all applicable safety standards (or the vehicle does not conform solely because readily attachable equipment items which will be attached to it before it is offered for sale to the first purchases for purposes other than resale are not attached), and bumper and theft prevention standards, and bears a certification label or tag to that effect permanently affixed by the original manufacturer to the vehicle, or by equipment items which will be attached to it before it is offered for sale to the first purchases for purposes other than resale are not attached), and bumper and theft prevention standards, and bears a certification label or tag to that effect permanently affixed by the original manufacturer to the vehicle, or by the manufacturer to the equipment item or its delivery container, in accordance with, as applicable, parts 541, 555, 567, 568, and 581, or 571 (for certain equipment items) of this chapter.

(j)(1) The vehicle or equipment item does not conform with all applicable Federal motor vehicle safety and bumper standards, but is being imported solely for the purpose of:

(i) Research;
(ii) Investigations;
(iii) Show or display;
(iv) Demonstrations or training; or
(v) Competitive racing events;

(2)(i) The importer has received written permission from NHTSA; or (ii) The importer is an original manufacturer of motor vehicles (or a wholly owned subsidiary thereof) that are certified to comply with all applicable Federal motor vehicle safety standards; and

(3) The importer will provide the Administrator with documentary proof of export or destruction not later than 30 days following the end of the period for which the vehicle has been admitted into the United States.

The TIB provisions under which the vehicles have been entered provide as follows:

9813.00.15: Articles imported by illustrators and photographers for use solely as models in their own establishments, in the illustrating of catalogues, pamphlets or advertising matters.

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

9813.00.75: Automobiles, automobile chassis, automobile bodies, cutaway portions of any of the foregoing and parts for any of the foregoing, finished, unfinished or cutaway, when intended solely for show purposes.

With respect to subheadings 9813.00.15, and 9813.00.75, HTSUS, in HQ 202244, dated February 19, 1975 (copy enclosed), Customs permitted the entry of pre-production vehicle models, for the purpose of being photographed for advertisements and brochures under subheadings 864.75, and 864.15, TSUS (the predecessor provisions for what are now, respectively subheadings 9813.00.75 and 9813.00.15, HTSUS). For 864.15, the ruling noted that the entry would have to be made by the advertising agency responsible for preparing the advertising materials, or the photographer designated to use the vehicles as models. Based on the decision in HQ 202244, the vehicles would be eligible for entry under subheadings 9813.00.75 and 9813.00.15, HTSUS.

With respect to subheading 9813.00.15, HTSUS, HQ 202244 did not address the location of the use of the vehicles as models, and whether the use was limited to the establishments of the illustrators and the photographers. An entry under subheading 9813.00.15, would have to be made identifying the illustrator or photographer as the importer, and would be limited to importation for filming in the photographer’s own establishment. Given the nature of automobile commercials, it is unlikely, that the filming would take place in the photographer’s own establishment. In this case, for a non-conforming vehicle, in order to import the vehicle, the photographer would be required to obtain written permission from the National Highway Traffic Safety Administration, in accordance with 49 CFR 591.5(j)(2)(i), supra.

With respect to subheading 9813.00.75, HTSUS, there are no limitations as to the importer, and either the OEM or photographer could enter the vehicle. For a non-conforming vehicle, for purposes of both subheadings 9813.00.15 and 9813.00.75, the appropriate box on the DOT Declaration is no. 7, which provides for non-conforming vehicles imported for “research, investigation, show or display, demonstrations or training, or competitive racing events.” For a conforming vehicle, the appropriate box on the DOT Declaration is no. 2A, which provides for conforming vehicles, appropriately labeled or tagged.

With respect to subheading 9813.00.30, HTSUS, a controlling factor for importation under this subheading is whether there is a legitimate test, experiment, or review of the imported article within the meaning of the law. See HQ 228619, dated September 12, 2001. In this case, there is no indication of any test, experiment, or review of the imported vehicles, therefore, the imported vehicles cannot be imported under this provision.

We have also considered the applicability of subheading 9813.00.25, HTSUS, which provides for the temporary importation of “articles solely for examination with a view to reproduction, or for such examination and reproduction; and motion-picture advertising films.” A review of prior decisions on the application of this subheading, as well as the language of the subheading itself, leads us to conclude that the provision is limited to the reproduction of the actual imported article, such as drawings, blueprints, negatives, photographs, software, or even the duplication of types of food, as opposed to the depiction of an imported article such as a vehicle, on film or in photographs. See HQ decision dated November 30, 1951 (copy enclosed).

With respect to conforming vehicles, they may be entered under a consumption entry by either an OEM or an individual, in accordance with 49 CFR 591.5(b). The appropriate box on the DOT Declaration is no. 2A, which provides for appropriately labeled or tagged conforming vehicles. With respect to non-conforming vehicles, under 49 CFR 591.5(j), they may be entered for certain specified purposes, including “show or display” and “demonstrations or training”. For these purposes, the non-conforming vehicles may be entered by either an OEM, or any importer, provided the non-OEM importer has obtained written permission from the National Highway Traffic Safety Administration, in accordance with 49 CFR 591.5(j)(2)(i), supra, for such importation. The terms “show”, “display”, and “demonstrations” are not defined by the DOT regulation. As the DOT has previously allowed the importations of non-conforming vehicles for the purpose of filming commercials, we presume that the filming falls within the DOT’s definition of “show”, “display” or “demonstration.” However for a definite determination of eligibility under 49 CFR 591.5(j)(1), the issue would have to be submitted to the DOT.

HOLDING:

The vehicles qualify for importation under subheading 9813.00.75, HTSUS. The vehicles qualify for importation under subheading 9813.00.15, HTSUS, provided the photographer is the importer of record, and the filming takes place in the photographer’s establishment. The non-conforming vehicles, imported for a purpose described in 49 CFR 591.5(j)(1), can be entered under a consumption entry, by either an OEM, or any importer, provided the non-OEM importer has obtained written permission from the National Highway Traffic Safety Administration, in accordance with 49 CFR 591.5(j)(2)(i), for such importation.

Sincerely,

John Durant
Director, Commercial

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