Newly Released CBP HQ Rulings Dec. 4 - Dec. 6
The Customs Rulings Online Search System (CROSS) was updated between Dec. 4 and Dec. 6 with the following headquarters ruling (ruling revocations and modifications will be detailed elsewhere in a separate article as they are announced in the Customs Bulletin):
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H311149: Application for Further Review of Protest Number 3901-20-110046; tariff classification of PTMEG 2000
| Ruling: PTMEG 2000 is classified under heading 3907, specifically subheading 3907.20.000, which provides for: “polyacetals, other polyethers and epoxide resins, in primary forms; polycarbonates, alkyd resins, polyallyl esters and other polyesters, in primary forms.” |
| Issue: Should CBP rely on its laboratory determination that the subject PTMEG 2000 has a Drop Melting Point below 40ºC? |
| Item: Gantrade's linear, polymeric, primary diol, with an average of 27 repeating monomer units. It is a waxy, white solid that melts to a clear, colorless, viscous liquid. |
| Reason: The Protestant argues that CBP has previously classified PTMEG 2000 under heading 3404 in NY 876960 on Oct. 22, 1992, and that CBP’s CF 29 Notice of Action on Sept. 11, 2019 was the first time PTMEG 2000 was classified by CBP under heading 3907. However, the protestant failed to notice NY N266102, dated July 9, 2015, which classified PTMEG 2000 under heading 3907, accounting for the drop melting point of 32ºC (also tested in liquid state). Moreover, there is no indication that the New York Seaport Area Director’s 1992 ruling included Customs laboratory analysis of the merchandise rather than reliance on information provided by the importer. |
| Ruling Date: March 22, 2021 |
H340907: Coastwise Transportation; 46 U.S.C. § 55103; 19 C.F.R. § 480a(b)(1)
| Ruling: The transportation of passengers on a “voyage-to-nowhere” beyond the territorial sea in which the passengers embark and disembark at the same coastwise point would not constitute a violation of 46 U.S.C. § 55103. However, a rerouting of the voyage to remain close to shore or enter Blackwater Sound, a voyage which would remain wholly within U.S. territorial waters and would be in violation of 46 U.S.C. § 55103 and 19 CFR § 4.80a(b). |
| Issues: Does the transportation of the subject individuals constitute a violation of 46 U.S.C. § 55103 as implemented by 19 C.F.R. § 480a(b)(1)? |
| Item: A small boat tour operator that operates tours using the non-coastwise-qualified vessel FLORIDAZE (“vessel”). The vessel is a Swedish-built, U.S. Coast Guard-documented vessel that is used to transport up to six passengers on two-hour sunset excursions, from the point of embarkation along Adams Waterway in Key Largo, Florida. |
| Reason: See ruling. |
| Ruling Date: Oct. 4, 2024 |
H342562: Affirmation of Headquarters Ruling H340907; Round Trip Boat Tours within Coastwise Waters; 46 U.S.C. § 55103; 19 C.F.R. § 4.80a(b)(1)
| Ruling: The transportation of passengers on a “voyage-to-nowhere” beyond the territorial sea in which the passengers embark and disembark at the same coastwise point would not constitute a violation of 46 U.S.C. § 55103. However, a rerouting of the voyage to remain close to shore or enter Blackwater Sound, a voyage which would remain wholly within U.S. territorial waters, would be in violation of 46 U.S.C. § 55103 and 19 C.F.R. § 4.80a(b). |
| Issues: Does the transportation of passengers on a closed-loop voyage, by a non-coastwise-qualified vessel, that remains within the U.S territorial waters for the entirety of its voyage, constitute a violation of 46 U.S.C. § 55103 as implemented by 19 C.F.R. § 4.80a(b)(1)? |
| Item: A small boar tour operator that operates tours using the non-coastwise-qualified vessel FLORIDAZE. |
| Reason: See ruling. |
| Ruling Date: Dec. 4, 2024 |
H282725: Internal Advice Request; Clarification on the Ability to Refund Duties and Fees on Possibly Adulterated Food under 19 U.S.C. § 1558, and Modification Request of HQ H240986 under 19 U.S.C. § 1625
| Ruling: If adulterated food that has left Customs custody is subsequently refused admission by the FDA, and is timely exported or destroyed under CBP supervision, a duty refund is not appropriate unless the merchandise was entered in good faith and thereafter found to be prohibited. The determination of whether adulterated food is “prohibited” is necessarily a case-by-case analysis and the burden is on the importer to prove by a preponderance of the evidence that the merchandise was unable to be brought into conformity through reasonable means. Also, neither CBP’s NOR instructions nor 19 C.F.R. § 159.55 conflict with CBP’s denial of a refund request based on an importer’s decision not to submit a reconditioning proposal to the FDA and to export or destroy the merchandise under CBP supervision without providing proof that the merchandise is prohibited. Furthermore, neither HQ H240986 nor C.D. 5610-006A conflict with CBP’s denial of a refund request based on an importer’s decision not to submit a reconditioning proposal to the FDA and to export or destroy the merchandise under CBP supervision without providing proof that the merchandise is prohibited. |
| Issues: (1) The Port of JFK International Airport asked whether duty refunds are permissible if a refused food item may not be “absolutely prohibited” entry, but “possibly” could be reconditioned to satisfy the FDA for admission into the United States. (2) May CBP deny a refund request based on an importer’s decision not to submit a reconditioning proposal to the FDA and to export or destroy the merchandise under CBP supervision? (3) Is there a contradiction in requiring a determination that the merchandise constituted a prohibited article before approving a refund request in light of HQ H240986 and C.D. 5610-006A? |
| Item: An importer of frozen shrimp seeking a refund of antidumping duties on the frozen shrimp it had exported/destroyed under CBP supervision after the import was refused admission by the FDA because it contained nitrofurans in violation of Sections 402(a)(2)(C)(i)-(ii) & 801(a)(3)) of the Federal Food, Drug & Cosmetic Act, as amended 21 U.S.C. § 301 et. seq. |
| Reason: In ACE, importers can receive a “CBP Release” message. Pursuant to the ACE Cargo Release/PGA Message Set Glossary, the “CBP Release message indicates that CBP has determined that the merchandise may be released from CBP custody.” The relevant inquiry for purposes of 19 U.S.C. § 1558 will be whether the merchandise has actually been released from CBP’s physical custody - whether or not the merchandise has received an ACE “CBP Release” message indicating that it “may” be released. To the extent merchandise leaves CBP’s custody, the 19 U.S.C. § 1558 inquiry of whether merchandise is “prohibited” can become relevant. If the merchandise has left CBP’s custody, the Port inquired about the means “to identify an ‘absolute’ prohibition versus a possibly prohibited food item.” The FDA provides that an importer may submit to the FDA a written application (Form FDA-766) requesting permission to bring into compliance an adulterated article. Under 21 C.F.R. 1.95 and 1.96, the FDA will approve applications when it appears that the “action will be successful and result in an acceptable product.” The FDA does not keep a list of what violations can be reconditioned or how such reconditioning can occur. The inquiry necessarily requires a case-by-case analysis. |
| Ruling Date: Aug. 23, 2024 |
H277463: Application for Further Review of Protest Number 2809-16-100293; Unused Merchandise Drawback; Substitution Drawback; 19 U.S.C. § 1313(j)(2); Distilled Spirits; Excise Tax; 19 C.F.R. § 191.38; 19 C.F.R. § 191.2(t); 19 C.F.R. § 191.72
| Ruling: Brown-Forman’s drawback claims at issue under protest number 2809-16-100293 are eligible for drawback. |
| Issues: Are Brown-Forman’s entries of tax-deferred GNS admitted into a TTB-bonded DSPs eligible for drawback under 19 U.S.C. § 1313(j)(2) upon the exportation of substituted commercially interchangeable tax-deferred alcohol for which no tax was paid, and no consumption entry was filed? |
| Item: Brown-Forman's entries grain neutral spirits (“GNS”) from Canada on May 15, 2014, and May 20, 2014. |
| Reason: To overcome the discrepancies that appear in the export documentation, Brown-Forman provided a straight bill of lading, purchase order, certificate of analysis, shipping instructions, intent to export form, and number reporting form. These documents further evidence the exportation of tankers from Kentucky to Finland, and consistently identify each exported tanker, bill of lading number, sales order number, and booking number, as they appear on the previous documents provided by Brown-Forman. The evidence in these documents, particularly the merchandise description, sales information, and shipping date, cross-reference CBP Form 7551, CBP Form 7553, CBP Form 7512, export commercial invoice, packing list, and the export bill of lading that Brown-Forman previously provided. Despite the clerical errors that appear on certain documents, the disputed information is consistent among the other export documents indicating these were in fact clerical errors. Accordingly, based on the totality of the documentation provided by Brown-Forman, we find that Brown-Forman has satisfied the requirements of 19 C.F.R. § 191.72 and substantiated its exportation of articles for drawback purposes. |
| Ruling Date: Sept. 27, 2024 |
H338618: Request for Internal Advice; Classification of disposable electric personal vaping devices; pre-filled; non-refillable; rechargeable batteries
| Ruling: The subject disposable personal vaporizing devices are classified under heading 2404, specifically subheading 2404.12.05, which provides for “[P]roducts containing tobacco, reconstituted tobacco, nicotine, or tobacco or nicotine substitutes, intended for inhalation without combustion; other nicotine containing products intended for the intake of nicotine into the human body: Products intended for inhalation without combustion: Other, containing nicotine: Mixtures for personal electric or electronic vaporizing devices.” |
| Issues: Is the subject merchandise classifiable under heading 2404, which provides for “[P]roducts containing tobacco, reconstituted tobacco, nicotine, or tobacco or nicotine substitutes, intended for inhalation without combustion” or under heading 8543, which provides for “[E]lectrical machines and apparatus, having individual functions, not specified or included elsewhere in this Chapter”? |
| Item: Two styles of pre-filled personal electronic vaporizing devices |
| Reason: The determinative issue is whether the subject personal electric vaporizing devices are disposable; if so, classification is proper under heading 2404, and if not, classification properly falls to heading 8543. In the instant analysis, both of the subject devices satisfy the first “disposable” criterion in that they are designed to be discarded when their pre-filled nicotine solutions are depleted, and neither can be refilled or accommodate replacement cartridges. As such, the subject devices are disposable personal electric vaporizing devices covered by heading 2404. The fact that the subject devices are capable of being recharged does not negate their status as disposable devices for purposes of heading 2404. The rechargeable batteries merely enable the devices to use up their reservoirs of pre-filled nicotine solution that allow a user up to 5,000 and 7,000 “puffs” respectively, which would otherwise be wasted if the batteries were to deplete before the solution is exhausted. As the subject personal vaporizing devices contain nicotine intended for inhalation without combustion, and they are designed to be discarded once their pre-filled solutions of vaping product are depleted, they are classified in heading 2404. |
| Ruling Date: Oct. 4, 2024 |
H335916: Request for Internal Advice; Classification of pre-filled disposable electric personal vaping devices; non-refillable; non-rechargeable battery; rechargeable battery
| Ruling: The subject personal vaporizing devices are classified under heading 2404, specifically subheading 2404.12.05, which provides for “[P]roducts containing tobacco, reconstituted tobacco, nicotine, or tobacco or nicotine substitutes, intended for inhalation without combustion; other nicotine containing products intended for the intake of nicotine into the human body: Products intended for inhalation without combustion: Other, containing nicotine: Mixtures for personal electric or electronic vaporizing devices.” |
| Issues: Is the subject merchandise classifiable under heading 2404, which provides for “[P]roducts containing tobacco, reconstituted tobacco, nicotine, or tobacco or nicotine substitutes, intended for inhalation without combustion” or under heading 8543, which provides for “[E]lectrical machines and apparatus, having individual functions, not specified or included elsewhere in this Chapter”? |
| Item: Two styles of personal electronic vaporizing devices imported pre-filled with a nicotine-based e-liquid in a sealed reservoir |
| Reason: The determinative issue is whether the subject personal electric vaporizing devices are disposable; if so, classification is proper under heading 2404, and if not, classification properly falls to heading 8543. In the instant analysis, both of the subject devices satisfy the first “disposable” criterion in that they are designed to be discarded when their pre-filled nicotine solutions are depleted, and neither can be refilled or accommodate replacement cartridges. As such, the subject devices are disposable personal electric vaporizing devices covered by heading 2404. The fact that the second device is capable of being recharged does not negate its status as a disposable device for purposes of heading 2404. The rechargeable batteries merely enable the device to use up its reservoir of pre-filled nicotine solution that allow a user up to 6,000 “puffs,” which would otherwise be wasted if the batteries were to deplete before the solution is exhausted. As the subject personal vaporizing devices contain nicotine intended for inhalation without combustion, and they are designed to be discarded once their pre-filled solutions of vaping product are depleted, they are classified in heading 2404. |
| Ruling Date: Oct. 4, 2024 |
H342177: USMCA Eligibility; Used Automotive Parts; Disassembly
| Ruling: CBP found that that various automotive components recovered from used vehicles, without further remanufacture, are not considered originating pursuant to the USMCA, and therefore, do not qualify for preferential treatment. |
| Issues: Does disassembly in Canada of automotive parts from used vehicles qualify the parts as originating under the USMCA when they are imported into the United States from Canada? |
| Item: New England Auto Parts' used automotive components sourced from salvage yards in Canada and obtained by disassembly of used vehicles in Canada |
| Reason: According to GN 11(l)(xvi)(1) of the USMCA, the term “production” means “growing, cultivating, raising, mining, harvesting, fishing, trapping, hunting, capturing, breeding, extracting, manufacturing, processing or assembling a good.” While NAFTA accounted for disassembly as a qualifying production operation via 19 C.F.R § 181.132, this regulation is limited to GN 12 and Chapter Four of NAFTA, and is not applicable to the USMCA. In sum, even if there are any qualifying changes in tariff classification of the parts when they are removed from used vehicles in Canada, these tariff shifts are not a result of “production” under the terms of the USMCA and therefore, are not sufficient to render the parts as originating under the USMCA. |
| Ruling Date: Nov. 26, 2024 |