HQ 224708: Request for reconsideration of HQ 224133 concerningsubstitution same condition drawback on merchandise marketedspecifically towards foreigners visiting the U.S.; 19 U.S.C.1313(j)(2); 19 CFR 191.141(h); 19 CFR 191.53.

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 224708

                           May 6, 1994


DRA-4 CO:R:C:E 224708  TLS

CATEGORY: Entry

Mr. James Geraghty
Donohue and Donohue
26 Broadway
New York, New York  10004


RE: Request for reconsideration of HQ 224133 concerning
substitution same condition drawback on merchandise marketed
specifically towards foreigners visiting the U.S.; 19 U.S.C.
1313(j)(2); 19 CFR 191.141(h); 19 CFR 191.53.



Dear Mr. Geraghty:

     The above-referenced request has been received by this
office for our consideration.  We have considered the points
raised in your submissions, and our decision follows.

FACTS:

     The facts here are as they were in HQ 224133 except for a
couple of notes.  First, certain VCRs subject to the ruling could
not be used to record in the U.S., only to playback tapes.  Also,
certain video cameras could not be used to play back video
recordings on NTSC compatible televisions or VCRs, as they
operate only on the PAL system.  Secondly, documentation has been
furnished as evidence that the Federal Communications Commission
(FCC) has recognized the subject merchandise as not being likely
or practical to be used in the United States.  As a result, the
FCC has waived the claimant of having to comply with its
regulations requiring closed-caption decoding circuitry for
television broadcast receivers with picture screens 13 inches or
larger in diameter that are manufactured in or imported into the
U.S.

     In addition, the claimant will require a purchaser of any of
the subject items to complete a "Customer Export Declaration" to
comply with the requirements of various federal agencies,
including Customs.  The declaration requires the consumer to
furnish his name, country of citizenship, passport number, local
phone number, flight number, date of departure from the U.S.,
date of declaration, and signature.  The retail dealer must
furnish on the same document the model number, serial number, the
dealer's name, product description, name and address of supplier,
dealer number, the claimant's compliance officer's name, and the
dealer's telephone number.  All other facts are taken to be what
they were at the time of the original ruling request.

     The claimant requests a reconsideration of the finding that
it must comply with Exporter's Summary Procedure (ESP)
requirements and a waiver of some those requirements. 

ISSUE:

     Whether the circumstances noted here are in accordance with
the requirements under 19 CFR 191.53 and the Exporter's Summary
Procedure.

LAW AND ANALYSIS:

     To reiterate what is required of claimants and exporters of
merchandise upon which drawback will be claimed where a waiver of
notice to export has been obtained, we note the following:

     [T]he claimant will need to furnish to Customs, among
     other evidence, the location where the supporting
     evidence will be kept, ports where future exports will
     take place, and the mode of export transportation used
     in each export.  See Customs Directive 3740-007 (April
     21, 1992).  It would also have to maintain of evidence
     of the date of export, which particular carrier it was
     exported on, and something equivalent to an air waybill
     (such as an airline ticket stub or boarding pass) as
     proof of exportation.  Such evidence would be needed if
     Customs chooses to verify the exportation.  The
     claimant would need to obtain much of this evidence
     from the exporter.  Customs ruling HQ 224133 (April 19,
     1993).

You state that because it is impossible to have thousands of
individuals customers/exporters maintain records or take other
steps to facilitate drawback claims, the exporters under the
proposed scenario should be allowed a waiver of the requirement
to maintain those records.  The reasons given are that it is
unrealistic to have the exporters do such, and the warranty cards
to be furnished with the customer exporter declaration would
obviate the need for such.  We do not agree.

     While we recognize the improbability of having
consumer/exporters of the subject merchandise maintain records
concerning the exportation for Customs purposes, we are in no
position to grant a waiver of ESP requirements.  ESP is designed
to facilitate claims for drawback regardless of who the exporter
happens to be.  There exists no legal basis for granting a waiver
of those requirements in this case when other claimants under ESP
must meet them.

     Furthermore, limiting the claims to warranty cards dated no
more than six weeks after purchase would not guarantee that the
articles would not be used while in this country.  In addition,
if Customs were to grant a waiver in this situation, it would
reserve the right to periodically examine the merchandise before
exportation.  Complying with this would seem to be problematic
for the claimant at the least and unworkable on a practical
level.  The claimant would have no control over the articles to
be exported and could not make them available for examination
after they have been purchased.  Therefore, we are compelled to
find that the above-described proposal would not meet the
requirements for ESP claims.

HOLDING:

     The proposed scenario does not comply with 19 CFR 191.53 and
the claimant is not eligible for Exporter's Summary Procedure. 
This ruling is limited to the facts of this case.

                    Sincerely,




                    John Durant, Director
                    Commercial Rulings Division