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HQ 113868

May 9, 1997

ENT-1-03-RR:IT:EC 113868 GOB


Port Director of Customs
Attn: Entry Unit
9901 Pacific Highway
Blaine, Washington 98230

RE: Application for Further Review of Protest No. 3004-96-100100; Subheadings 9801.00.10 and 9801.00.80, HTSUS; Headings 8703 and 8704, HTSUS; 19 U.S.C. 1315(d); Uniform and established practice

Dear Sir or Madam:

The above-referenced protest was forwarded to this office for further review. We have considered the issues raised by your office and by the representative of Yogo Travelers ("protestant"). Our decision follows.


The protestant claims that the merchandise at issue on the subject entry, one Ford Econoline van, should be duty-free under heading 8703 or 8704, Harmonized Tariff Schedule of the United States ("HTSUS") by virtue of the "Special" subcolumn in those headings and "B" which denotes the Automotive Products Trade Act

The entry was liquidated as dutiable pursuant to subheading 9801.00.80, HTSUS.

The protestant states:

Protest is hereby made against the collection of duty equal to the amount of duty-drawback claimed by the original vehicle manufacturer upon exportation from the United States.

It is our contention that such vehicles should be entitled to duty-free entry under HTS# B 8703 or B 8704.
In early January, 1995, more than one year after the implementation of the North American Free Trade Agreement, the U.S. Customs Service decided that Customs should collect duties equal to the amount of duty drawback claimed by and returned to the original U.S. vehicle/truck manufacturer -- and so instructed all Customs field offices.

This action clearly constituted a change to the standard, uniform practice of prior years. Yet, to our knowledge, notification of this change in practice was never published in the Federal Register.

We contend that the collection of duties in an amount equal to the duty drawback refunded to the U.S. vehicle/truck manufacturer is both improper and illegal, and all amounts collected should be refunded to the importer.


Whether a uniform and established practice existed with respect to the classification of the subject vehicle.

Whether the protestant has established that the subject vehicle was incorrectly classified.


We note initially that the protest was timely filed under the statutory and regulatory provisions for protests, 19 U.S.C. 1514(c)(3)(B) and 19 CFR 174.12(e)(2). The record reflects that the subject entry was liquidated on January 12, 1996, and that the protest was received by Customs on February 7, 1996.

Pursuant to 19 U.S.C. 1514(a)(5), the liquidation of an entry is a protestable item.

The entry was liquidated as dutiable pursuant to subheading 9801.00.80, HTSUS, which provides:

Articles previously exported from the United States which -- except for U.S. note 1 of this subchapter -- would qualify for free entry under one of the foregoing items and are not otherwise free of duty: Other, except articles excluded by U.S. note 1(c) of this subchapter...

U.S. Note 1 to Subchapter I provides in pertinent part:

The provisions in this subchapter (except subheadings 9801.00.70 and 9801.00.80) shall not apply to any article:

(a) Exported with benefit of drawback;
(c) Manufactured or produced in the United States in a customs bonded warehouse or under heading 9813.00.05 and exported under any provision of law.
(Emphasis supplied.)

The "General" subcolumn of subheading 9801.00.80 provides:

A duty (in lieu of any other duty or tax) equal to the sum of any duty and internal-revenue tax imposed upon the importation of like articles not previously exported, but in no case in excess of the sum of (a) any customs drawback proved to have been allowed upon such exportation of the article, and (b) any internal-revenue tax imposed, at the time such article is entered, upon the importation of like articles not previously exported[.]

19 U.S.C. 1315(d) provides as follows:

No administrative ruling resulting in the imposition of a higher rate of duty or charge than the Secretary of Treasury shall find to have been applicable to imported merchandise under an established and uniform practice shall be effective with respect to articles entered for consumption or withdrawn from warehouse for consumption prior to the expiration of thirty days after the date of publication in the Federal Register of notice of such ruling; but this provision shall not apply with respect to the imposition of anti-dumping duties or the imposition of countervailing duties under section 1303 of this title.

The record indicates the following. The vehicle identification number ("VIN") of the subject vehicle is 1FDGS24H5MHA18369. All 1990's-manufactured Ford pick-up trucks and cargo vans with a VIN beginning with a 1 or 4 are subject to the collection of drawback fees under subheading 9801.00.80, HTSUS, which is not a new HTSUS provision. However, there was a period of time during which the Customs Service, or one or more of its offices, was not aware that drawback had previously been paid with respect to these vehicles. During this period, your office did not classify these vehicles under subheading 9801.00.80, HTSUS because it was not aware of its applicability, i.e., your office was not aware that drawback had previously been paid on these vehicles. We are advised that during this period these vehicles were classified by your office under subheading 9801.00.10, HTSUS, and were therefore duty free.

For numerous reasons, the protestant has not made a case for relief.

First, the protestant has not provided any substantive information or evidence with respect to the claimed change of practice. See Customs Law and Administration by Ruth F. Sturm (3rd ed., 1995) at Chapter 52, p. 29:

Long-continued administrative practice must be shown by positive evidence. It is not established by the rulings of one or two collectors as to a few shipments...

Additionally, the fact that a Customs office (or certain Customs offices) may have changed its classification of Ford Econoline vans after Customs was made aware that drawback had been paid on those vehicles is not a change in practice within the meaning of 19 U.S.C. 1315(d). See Heraeus-Amersil, Inc. v. United States, 9 CIT 412, 417 (1985), where the court stated:

Prior discussions demonstrate that when Customs has not had a reasonable opportunity to investigate adequately the proper classification for a type of imported merchandise, an established and uniform practice will not arise in the interim.

Further, although it is not clear from the protest, it would appear that the protestant may be claiming that Customs' practice existed with respect to classifying these vehicles under subheading 9801.00.10, HTSUS, while at the same time the protestant is asserting that the vehicles should now be classified under headings 8703 or 8704 (duty-free by virtue of the "Special" subcolumn in these headings and "B" which denotes the APTA). At any rate, the protestant has failed to establish a uniform and established practice under subheading 9801.00.10, or under headings 8703 and/or 8704.

Beyond that, the protestant has not established that the merchandise was incorrectly classified in subheading 9801.00.80, HTSUS. It has not established, nor has it articulated, a case supported by any documentation which would prove that the subject vehicle is classifiable under headings 8703 or 8704 (duty-free under APTA) or under subheading 9801.00.10. In this regard, we note that the vehicle is not eligible for duty-free treatment under APTA (see the "Special" subcolumn in headings 8703 and 8704) because it is not a Canadian article within the meaning of General Note 5(a)(i), HTSUS.

Concerning the issue of a uniform and established practice with respect to subheading 9801.00.10, HTSUS, in Ruling 559052 dated July 7, 1995, we stated:

Furthermore, we believe that a uniform and established practice cannot exist for entries which are claimed to be duty-free under subheading 9801.00.10, HTSUS. In order for an entry to be free of duty under this provision, certain documentation requirements must be satisfied, or the District Director must be satisfied that all of the requirements for eligibility under this provision have been satisfied so that the documentation requirements may be waived. Therefore, the fact that a Ford Taurus may enter into the U.S. at a free rate of duty under subheading 9801.00.10, HTSUS, does not necessarily mean that a similar Ford Taurus is eligible to enter into the U.S. duty-free under subheading 9801.00.10, HTSUS. We recognize that the courts have found that a section 1315(d) "established and uniform practice" can be predicated on uniform classifications and liquidations at various ports over a period of time. Heraeus-Amersil, Inc. v. United States, 617 F. Supp. 89, 9 CIT 412 (1985), (where the court found that a uniform and established practice had been established with regard to the classification of fused quartz/fused silica under items 540.11 and 540.41, TSUS). The facts at issue in this case, however, do not involve the question of whether or not a certain tariff classification applies, but rather whether the subject vehicles have satisfied all of the requirements for duty-free eligibility under a Chapter 98, HTSUS, provision. Entries under subheading 9801.00.10, HTSUS, are fact specific; each entry stands on its own particular fact situation. Hence, liquidations covering the same type of merchandise at a free rate of duty are not enough to establish a uniform and established practice under subheading 9801.00.10, HTSUS.

Finally, we note that your office opined that the protestant may have confused in the subject protest certain arguments used in other protests involving different factual situations. In this regard, we note that in Ruling 559517 dated January 2, 1997 with respect to an application for further review forwarded from your office (Protest No. 3004-95-100150), the protestant in that case claimed that a uniform and established practice existed concerning the entry of a Ford Explorer produced in a foreign trade zone in the United States and its claimed classification under subheading 9801.00.10, HTSUS. The protestant's claim with respect to a uniform and established practice was denied. The facts and most of the issues in Ruling 559517 are different from those in the subject protest, e.g., the vehicle in this protest was not manufactured in a foreign trade zone.

Based upon all of the above, we find that the protest should be denied.


The protestant has not established the existence of a uniform and established practice under headings 8703 and/or 8704 or under subheading 9801.00.10 with respect to the subject vehicle.

The subject vehicle was correctly classified under subheading 9801.00.80.

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 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, the Freedom of Information Act and other public access channels.


International Trade Compliance

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