Newly Released CBP HQ Rulings for Aug. 30 - Sept. 9
The Customs Rulings Online Search System (CROSS) was updated between Aug. 30 and Sept. 9 with the following headquarters rulings (ruling revocations and modifications will be detailed elsewhere in a separate article as they are announced in the Customs Bulletin):
Sign up for a free preview to unlock the rest of this article
Communications Daily is required reading for senior executives at top telecom corporations, law firms, lobbying organizations, associations and government agencies (including the FCC). Join them today!
H341220: Modification of HQ H326262
| Ruling: HQ H326262, dated July 5, 2024 (see 2408160007) is modified to allow, for purposes of per unit averaging in calculating substituted unused merchandise drawback, the use of a unit of measure that is reported on the entry summary line as required by the applicable HTSUS subheading, so long as the claimant will not change the unit of quantity for purposes of future drawback claims against that entry summary line and so long as the claimant will track this selection and monitor its compliance to the entry line level in its systems of record used in the ordinary course of business. Because the same unit of measure that is used to report the quantity for the imported merchandise must also be used to report the quantity for the substituted drawback eligible merchandise, the same unit of measure must be used for purposes of calculating drawback eligible merchandise in the FTZ context. |
| Issue: Whether the holding in HQ H305251 would similarly apply to the prospective drawback claims proposed in the ruling request, and whether, for purposes of calculating substituted unused merchandise drawback, the claimant can choose the unit of measure used in the per unit averaging calculation. |
| Item: The Company produces merchandise in a FTZ that contains domestic and foreign status components. According to the Company, the foreign status components are previously imported and not duty paid, while the domestic status components are either domestically produced or previously imported and duty paid. The Company seeks to claim drawback with regard to the finished merchandise, classified under subheading 8507.60.00, which was manufactured with foreign status components classified under subheading 8507.60.00 and exported. CBP determined that the Company cannot deduct the value and weight of foreign status components from the finished exported merchandise classified under subheading 8507.60.00 for purposes of calculating its claim for unused merchandise drawback pursuant to 19 U.S.C. 1313(j)(2). On Aug. 16, the company submitted a formal request for reconsideration of HQ H326262. The Company clarifies its ruling request in three ways. First, in seeking to use weight as a unit of measure for a drawback claim (as opposed to “number” or pieces), the unit of quantity for purposes of per unit averaging “must have been actually declared on the entry line within the import entry summary.” Second, “after selecting the unit of quantity for this purpose on a given entry line, the importer must not thereafter change the unit of quantity.” And third, the drawback claimant must be able to demonstrate the ability to track this selection and monitor its compliance in its systems of record. A June 20 letter from the company stated that the holding of HQ H326262 was unjustified for five reasons. First, CBP can only limit per unit averaging for drawback purposes by revising the relevant regulation. Second, General Statistical Note 4(b) of the HTSUS should not limit per unit averaging for drawback purposes. Third, per unit averaging normalizes import price differences, stabilizes drawback claims and defines the unit of measure for designated import entry lines. Fourth, limiting the acceptable unit of measure for per unit averaging constitutes a significant departure from CBP practice. Fifth, there is no compelling rationale for limiting which declared unit of quantity can be used for designation of drawback claims and per unit averaging. |
| Reason: CBP found that the company’s proposed methodology of using a unit of measure that is reported on the entry summary line as required by the applicable HTSUS subheading to be permissible under the applicable statutory and regulatory framework. Specifically, once the Company has selected a unit of quantity on a given entry summary line, it will not change the unit of quantity for purposes of future drawback claims “against” that entry summary line. Additionally, the Company will track this selection and monitor its compliance to the entry line level in its systems of record used in the ordinary course of business. The same unit of measure that was used to report the quantity for the imported merchandise must also be used to report the quantity for the substituted drawback-eligible merchandise. Thus, the same unit of measure must be used for purposes of calculating drawback-eligible merchandise in the FTZ context. We note that CBP is required to verify the accuracy of all drawback claims, which includes “examination of all records relating to the transaction(s)” as needed. 19 C.F.R. § 190.61(b). |
| Ruling Date: Aug. 30, 2024 |
H327526: Application for Further Review of Protest No. 2704-22-160272; Country of Origin of Computer Cooler Fans; Section 301 Measures
| Ruling: The country of origin of the imported computer cooler fans is China for purposes of Section 301 measures. |
| Issue: What is the country of origin of the computer cooler fans for purposes of Section 301 trade measures? |
| Item: The merchandise at issue are computer cooler fans that are imported from China. The computer cooler fans were originally part of kits with countries of origin that are “believed to be either Vietnam or Malaysia.” In a third country, the central processing unit chips were separated from the computer cooler fans. The CPU chips were not imported with the computer cooler fans. |
| Reason: Insufficient documentation was submitted to CBP. The protestant failed to substantiate its claim that the country of origin of the computer cooler fans is Malaysia, and the fans were imported from China. |
| Ruling Date: June 28, 2024 |
H338599: Application for Further Review of Protest No. 3901-23-128434; Classification of Pulse Oximeters
| Ruling: 9018.19.95, “Instruments and appliances used in medical, surgical, dental or veterinary sciences, including scintigraphic apparatus, other electro-medical apparatus and sight-testing instruments; parts and accessories thereof: Electro-diagnostic apparatus (including apparatus for functional exploratory examination or for checking physiological parameters); parts and accessories thereof: Other: Other: Other.” The general column one rate of duty is free. Pursuant to U.S. Note 20 to Subchapter III, Chapter 99, products of China classified under subheading 9018.19.95, unless specifically excluded, are subject to an additional 25% ad valorem rate of duty. |
| Issue: Whether the subject pulse oximeters are classified under heading 9018 as “instruments used in medical sciences,” or under heading 9029 as “tachometers.” |
| Item: The merchandise at issue consists of certain pulse oximeters from China. The subject pulse oximeters are used to measure the concentration of oxygen in blood, specifically oxygen saturation of arterial hemoglobin (SpO2). The protestant indicates that calculations from the subject pulse oximeters “can be used by the healthcare provider to decide if a person needs to seek medical attention and may need extra oxygen.” The pulse oximeters clip onto a user’s fingertip and take non-invasive measurements. Infrared light emits from one side of the clip, transmits through the user’s capillaries in the finger, and is received by a receptor on the other side of the clip. Color changes that occur over time represent oxygenation levels, which is calculated and displayed as functional oxygen saturation. The device also displays a user’s pulse rate in beats per minute (bpm). |
| Reason: CBP determined that while heading 9029 refers to part of the subject merchandise, the pulse oximeters in their condition at importation are wholly described by heading 9018, and are thus classifiable therein. The common and commercial meaning of the term “tachometer” includes certain medical instruments that measure a person’s heart rate. Heading 9029 describes the heart rate measurement function of the subject pulse oximeters. However, since the subject pulse oximeters, in their condition at importation, possess the general characteristics of devices used to aid medical professionals in diagnosing certain conditions through pulse oximetry, they fully meet the terms of heading 9018 as “instruments used in the medical sciences.” |
| Ruling Date: July 2, 2024 |
H320467: Affirmation of NY N319093; Classification of a “Bio Bidet"
| Ruling: CBP affirmed NY N319093. Accordingly, the subject Bio Bidet is properly classified in heading 3922, as a “bidet,” and is specifically classified in subheading 3922.90.00, which provides for “Baths, shower-baths, sinks, wash-basins, bidets, lavatory pans, seats and covers, flushing cisterns and similar sanitary ware, of plastics: Other." |
| Issue: Protestant alleged that the Bio Bidet is prima facie classifiable in heading 8424, because the Bio Bidet is a hand-operated mechanical appliance that has the sole purpose of projecting, dispersing, and spraying water. While CBP determined that the Bio Bidet is classifiable under two headings, the Protestor argued that heading 8424 is a more specific heading for the Bio Bidet than heading 3922 pursuant to GRI 3(a). |
| Item: The Bio Bidet is a self-cleaning nonelectric dual nozzle mechanical bidet. The hand operated bidet can easily attach to any toilet. It is made of plastic and metal materials. Once attached, the operator must turn on the water supply so that water flows both to the toilet tank and the bidet attachment. There are two nozzles for controlling front and back wash and multiple water pressure applications. |
| Reason: Heading 3922, which explicitly provides for bidets, is the more specific provision than heading 8424, which generally provides for mechanical appliances for projecting, dispersing or spraying liquids. The ENs to GRI 3 support this conclusion, noting that a description “by name is more specific than a description by class.” |
| Ruling Date: July 11, 2024 |
H331104: Country of Origin of High Field High-Temperature Superconducting Tape
| Ruling: Based on the information provided, the country of origin of the High-Temperature Superconducting (HTS) tape is Japan or an unidentified third country. |
| Issue: What is the country of origin of the HTS tape? |
| Item: HTS tape consisting of thin-rolled, nickel alloy-based strips that perform a key role in high field high-temperature superconducting magnets, which are in turn integrated into a fusion reactor. At cryogenic temperatures, the HTS tape gives the high-temperature superconducting magnets their magnetic properties, allowing a fusion reactor to be significantly smaller than devices based on other magnet technologies. The HTS tape consists of several layers: a copper layer, a Hastelloy C276 layer, a rare-earth barium copper oxide (ReBCO) layer, a silver layer, and a buffer stack of magnesium oxide. Of these materials, Requestor explains that the Hastelloy layer constitutes the greatest material by weight and thickness and that this layer is critical for the production and use of the HTS tape. Requestor contends that the Hastelloy layer and its tungsten threshold enables crystal formation and the proper orientation of the subsequent layers added in Japan or an unidentified third country. |
| Reason: The production of HTS tape in Japan or unidentified third country adds a key component, the ReBCO layer, that enables the HTS tape to be used in high-temperature superconducting magnets at cryogenic temperatures. Moreover, it is in Japan or an unidentified third country where a magnesium oxide layer is added, which serves as a buffer between the Hastelloy and ReBCO layer, as well as a silver layer to seal in the ReBCO layer to prevent contamination. Lastly, it is in Japan or an unidentified third country where a copper layer is added as protection for the ReBCO layer when the HTS tape is soldered together and this copper layer serves as a failsafe to discharge electrical currents if the ReBCO layer suddenly loses its function as a superconductor. What emerges from these significant production operations is an article substantially transformed in name, character, and use from the Hastelloy substrate base produced in the United States to HTS tape produced in Japan or an unidentified third country. |
| Ruling Date: Sept. 6, 2024 |