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HQ 557755




April 7, 1994

CLA-2 CO:R:C:S 557755 WAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 9801.00.10

District Director
U.S. Customs Service
300 S. Ferry Street
Terminal Island
Los Angeles, CA 90731

RE: Application for Further Review of Protest No. 2720-93- 101191; concerning the applicability of subheading 9801.00.10, HTSUS, to Ray Ban sunglasses

Dear Sir:

This is in reference to the above-referenced Application for Further Review which was timely filed by Grunfeld, Desiderio Lebowitz & Silverman on behalf of Yan's Optical Corp., concerning the applicability of subheading 9801.00.10, Harmonized Tariff Schedule of the United States (HTSUS), to Ray Ban sunglasses, which are a product of Bausch & Lomb.

FACTS:

Protestant contests Customs assessment of duties on certain sunglasses classified under 9004.10.0000, HTSUS, at 7.2 percent ad valorem. Protestant claims that the sunglasses should be entered free of duty under subheading 9801.00.10, HTSUS, as American Goods Returned.

Representatives of Bausch & Lomb were contacted by your office in an effort to obtain the specific model numbers for each pair of sunglasses in the subject entries. Your office also asked Bausch & Lomb representatives to identify the specific location where the sunglasses at issue may have been produced. In a telefax from Bausch & Lomb dated May 24, 1993, a representative stated that based on the style numbers which are the subject of this protest, the sunglasses may have been produced in more than one country. The representative from Bausch & Lomb also stated that the origin of the sunglasses can be determined based on the product marking. According to the Bausch & Lomb representative, the marking consists of a four digit code that is stamped on the same end of the Ray Ban box as the product name and catalog number. The third and fourth digit of the "code" identify the manufacturing site for the sunglasses. Bausch & Lomb also provided a list of the manufacturing sites world-wide for the sunglasses which it produces.

The importer also submitted a letter written by Mr. Vartan Yaghsezian, President of High Fashion Optical, located in Tarzana, CA, dated May 5, 1993, in which he certifies that the eleven cartons of sunglasses imported from Singapore under invoice No. HFB-200/93, were made by Bausch & Lomb in Rochester, New York. However, Mr. Yaghsezian states that "[a]t this moment we do not have any proof of export because we are not the exporters of this product."

ISSUE:

Whether the Ray Ban sunglasses are eligible for duty-free treatment under subheading 9801.00.10, HTSUS, when returned to the U.S.

LAW AND ANALYSIS:

Subheading 9801.00.10, HTSUS, provides for the duty-free entry of U.S. products that are exported and returned without having been advanced in value or improved in condition by any means while abroad. Articles satisfying the above conditions of the statute will be afforded duty-free treatment, provided the documentary requirements of section 10.1, Customs Regulations (19 CFR 10.1), are met.

Compliance with section 19 CFR 10.1(a) is mandatory and a condition precedent to recovery unless compliance has been waived or is impossible. Maple Leaf Petroleum, Ltd. v. United States, 25 CCPA 5, T.D. 48976 (1937). The basis for waiver of the required documentation is predicated on the district director being satisfied by the production of other evidence as to the American origin of the merchandise and its eligibility under subheading 9801.00.10, HTSUS. According to 19 CFR 10.1(d), if the district director is reasonably satisfied, based on the nature of the articles or production of other evidence, that the articles were imported in circumstances meeting the requirements of subheading 9801.00.10, HTSUS, the district director may waive the requirements of producing the documents specified above.

In the instant case, the record clearly shows that your office was not satisfied that the Ray Ban sunglasses imported by Yan's Optical Corp. were of U.S. origin. Information submitted by your office indicates that, as part of consideration of the protest, Customs has not had an opportunity to examine actual samples of sunglasses from the five entries which are under protest as counsel for the importer stated that the merchandise has already been sold. Moreover, the samples that were examined from two other entries which were not protested did not possess a location code on the retail hangtag and/or retail box. Thus, for these samples, there was no way to properly identify the country where the sunglasses were produced. According to your office, the protest and attachments thereto constitute insufficient documentation to support a claim for duty-free treatment under subheading 9801.00.10, HTSUS.

The courts have held that, to receive duty-free treatment under this tariff provision, the merchandise must be positively identified as having been previously exported American goods, and it must be shown that no allowance of drawback was made upon exportation. Border Brokerage Co. v. United States, 59 Cust. Ct. 289, C.D. 3143 (1967). Moreover, it has been held that merchandise is not entitled to free entry as American goods returned where the Certificate of Exportation has not been filed or its production waived or proved impossible and the evidence offered in substitution thereof is insufficient. A.E. Coppersmith v. United States, 50 Cust. Ct. 8, C.D. 2381 (1963).

In this case, compliance with the documentary requirements of 19 CFR 10.1(a) was not waived by your office, the protestant has not established impossibility of compliance, and the evidence submitted in support of the protest is insufficient to establish that the merchandise was manufactured in the U.S. Therefore, we find that the Ray Ban sunglasses are not entitled to free entry under subheading 9801.00.10, HTSUS.

HOLDING:

In view of the insufficient evidence submitted by the protestant and the fact that the documentary requirements of 19 CFR 10.1 have not been satisfied or waived, the Ray Ban sunglasses do not qualify for the duty exemption available under subheading 9801.00.10, HTSUS. Accordingly, the protest should be denied.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, this decision together with the Customs Form 19, should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Lexis, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director

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