U.S. Customs and Border Protection◆

NOTICE OF REVOCATION OF A RULING LETTER HQ547654 RELATING TO POST-IMPORTATION

ADJUSTMENTS; TRANSFER PRICING; RELATED PARTYTRANSACTIONS; RECONCILIATION

AGENCY: U.S. Customs and Border Protection; Department ofHomeland Security.

ACTION: Notice of the revocation of a valuation ruling letter andany treatment relating to post-importation adjustments made pursu-ant to a methodology specified in formal transfer pricing policies.

SUMMARY: Pursuant to Section 625(c), Tariff Act of 1930, (19U.S.C. §1625(c)), as amended by Section 623 of Title VI (CustomsModernization) of the North American Free Trade Agreement Imple-mentation Act (Pub. L. 103–182, 107 Stat. 2057), this notice advisesinterested parties that U.S. Customs and Border Protection (“CBP”)is revoking Headquarters Ruling Letter (“HRL”) 547654, dated No-vember 8, 2001, relating to transfer pricing and the acceptability ofpost-importation adjustments, claimed pursuant to a formal transferpricing policy. Similarly, CBP is also revoking any treatment previ-ously accorded by it to substantially identical transactions. Notice ofthe proposed revocation was published on December 28, 2011, in theCustoms Bulletin, Vol. 46, No. 1. Multiple comments were receivedconcerning the notice of the proposed revocation.

EFFECTIVE DATE: This action is effective July 30, 2012.

FOR FURTHER INFORMATION CONTACT: Yuliya A. Gulis,Valuation and Special Programs Branch, Regulations and Rulings,Office of International Trade (202) 325–0042.

SUPPLEMENTARY INFORMATION:

BACKGROUND

On December 8, 1993, Title VI (Customs Modernization) of theNorth American Free Trade Agreement Implementation Act (Pub. L.103–182, 107 Stat. 2057) (hereinafter “Title VI”) became effective.Title VI amended many sections of the Tariff Act of 1930, as amended,and related laws. Two new concepts which emerge from the law are

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informed compliance and shared responsibility. These concepts arepremised on the idea that in order to maximize voluntary compliancewith customs laws and regulations, the trade community needs to beclearly and completely informed of its legal obligations. Accordingly,the law imposes a greater obligation on CBP to provide the publicwith improved information concerning the trade community’s respon-sibilities and rights under the customs and related laws. In addition,both the trade and CBP share responsibility in carrying out importrequirements. For example, under section 484 of the Tariff Act of1930, as amended (19 U.S.C. §1484), the importer of record is respon-sible for using reasonable care to enter, classify and value importedmerchandise, and to provide any other information necessary to en-able CBP to properly assess duties, collect accurate statistics anddetermine whether any other applicable legal requirement is met.

Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C.§1625(c)(1)), as amended by section 623 of Title VI, a notice waspublished in the Customs Bulletin, Vol. 46, No. 1, on December 28,2011, proposing to revoke HRL 547654, pertaining to transfer pricingand the acceptability of post-importation adjustments, claimed pur-suant to a formal transfer pricing policy. Multiple comments werereceived concerning the notice of the proposed revocation. Thesecomments are discussed in detail in HRL W548314 (Attachment A).As stated in the proposed notice, CBP is also revoking any treatmentpreviously accorded by CBP to substantially identical transactions.Any person involved in substantially identical transactions shouldhave advised CBP during this notice period. An importer’s failure toadvise CBP of substantially identical transactions or of a specificruling not identified in this notice, may raise issues of reasonable careon the part of the importer or its agents for importations of merchan-dise subsequent to the effective date of this action.

In HRL 547654, CBP held that transaction value did not applybecause the price was not fixed or determinable pursuant to anobjective formula prior to importation as the price was within thecontrol of the buyer and/or the seller. It is now CBP’s position thatsubject to certain conditions, the transaction value method of ap-praisement will not be precluded when a related party sales price issubject to post-importation adjustments that are made pursuant toformal transfer pricing policies and specifically related (directly orindirectly) to the declared value of the merchandise. These adjust-ments, whether upward or downward, are to be taken into account indetermining transaction value. Additionally, the importers that want

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to apply the transaction value method are strongly encouraged to useReconciliation to report the adjustments to CBP and to determine thetransaction value.

Pursuant 19 U.S.C. §1625(c)(1), CBP is revoking HRL 547654 andany other ruling not specifically identified, to reflect the proposedchanges according to the analysis contained in proposed HRL 548314,set forth as an attachment to this document. Additionally, pursuantto 19 U.S.C. §1625(c)(2), CBP is revoking any treatment previouslyaccorded by CBP to substantially identical transactions.Dated: May 16, 2012

IEVA K. O’ROURKE

forMYLES B. HARMON,

DirectorCommercial and Trade Facilitation Division

Attachment

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HQ W548314May 16, 2012

OT:RR:CTF:VS W548314 YAGCATEGORY: Valuation

PORT DIRECTOR

PORT OF CHAMPLAIN

U.S. CUSTOMS AND BORDER PROTECTION

198 WEST SERVICE ROAD

CHAMPLAIN, NEW YORK 12919

RE: Transaction Value; Formulas; Post-Importation Adjustments; Revoca-tion of HRL 547654

DEAR PORT DIRECTOR:This is in reference to Headquarters Ruling Letter (“HRL”) 547654, dated

November 9, 2001, regarding the valuation of certain bulk chemicals. TheImporter requested reconsideration of HRL 547654 in an internal advicerequest forwarded by your office. We have reconsidered HRL 547654 anddetermined that the methodology for determining the transfer price at issueconstitutes an objective formula for purposes of applying transaction valueand claiming post-importation adjustments. For the reasons set forth below,we hereby revoke HRL 547654.

On September 23, 2011, CBP published advance notice on this issue atcbp.gov and requested that the public provide comments on the broadening ofCBP’s interpretation of what constitutes a “formula” for purposes of usingtransaction value, thereby allowing post-importation adjustments. Manycomments were received in response to CBP’s request. All of the commentsreceived were in support of CBP’s proposed action, and CBP reviewed andtook these comments into account in issuing its proposed revocation of HRL547654, which was published on December 28, 2011, in the Customs Bulletin,Volume 46, Number 1, pursuant to section 625(c), Tariff Act of 1930, (19U.S.C. §1625(c)), as amended by section 623 of Title VI (Customs Modern-ization) of the North American Free Trade Agreement Implementation Act,Pub.L. 103–182, 107 Stat. 2057, 2186 (1993). Eight (8) comments werereceived in response to the proposed revocation of HRL 547654, relating totransfer pricing and the acceptability of post-importation adjustments,claimed pursuant to a formal transfer pricing policy. While all of the com-ments supported the proposal, a few comments suggested some clarificationand changes to the five factors that CBP discussed in examining whetherthere is a fixed price pursuant to a formula. Additionally, some commenterssuggested that Reconciliation should not be mandatory. A discussion of thecomments and CBP’s reasoning are found in the “Law and Analysis” sectionbelow.

FACTS:

HRL 547654 determined that there were bona fide sales between theImporter and the Sellers. As discussed in HRL 547654, the related partyImporter and Sellers used a transfer price to report the transaction value toU.S. Customs and Border Protection (“CBP”) which was calculated by sub-tracting: transportation costs to the U.S., customs duties, fixed costs of theimporter’s U.S. operations, and the importer’s profits from the anticipatedresale price in the U.S. of the merchandise sold by the Importer to the U.S.

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customers after importation. Due to the frequency and fluctuations of theadjustments because of the variations in sales prices and volumes of theimported merchandise, the related party Sellers proposed to defer certaindeductions from the resale price until after the actual resale in the U.S.Under those circumstances, the Importer made entry at the resale price lessfreight costs, customs duties, and the Importer’s profit. The deduction for theImporter’s U.S. fixed costs would occur after resale in the U.S. Entries fromall shipments to the U.S. between the Seller and Importer were flagged forReconciliation with CBP. For those costs not known at the time of entry (i.e.the Importer’s fixed costs in the U.S.), the Importer proposed to file quarterlyReconciliation entries with CBP to adjust its prices to reflect the actual costs.As part of the quarterly Reconciliation filing, the sum of the fixed costs wouldbe allocated by product group to individual shipments made during thequarter based on the ratio of fixed costs to sales for each product grouping. InHRL 547654, CBP held that transaction value did not apply because the pricewas not fixed or determinable pursuant to an objective formula prior toimportation. CBP found that the price was within the control of the buyerand/or the seller.

Subsequent to the receipt of the ruling, the Importer sought advice con-cerning the application of the ruling to its pending entries, and furtherinformation was provided. The company’s “Intercompany Transfer PricingDetermination Policy,” dated February 11, 2000, translated into English, wassubmitted to show how its inter-company prices are determined. On April 18,2006, the Importer provided CBP with its complete Transfer Pricing Deter-mination Policy, prepared for tax purposes.1 In this case, the company’sTransfer Pricing Determination Policy was prepared by its tax department.

The company’s Transfer Pricing Determination Policy established a systemfor the calculation of the transfer price and the distinction between thevariable and fixed costs. In pertinent part, the transfer pricing calculationfor directly delivered sales between the Importer and Seller is established asfollows:

Transfer price for a sale between the Importer and Seller = Sales price tothe U.S. customer (net of cash customer discount and rebates)2 minusvariable costs and a percentage of margin (profit).

1 The Internal Revenue Service (“IRS”) regulates transfer pricing for tax purposes throughSection 482 of the Internal Revenue Code, 26 U.S.C. §482 and the Section 482 regulations.The tax rules for transfer pricing are based on the premise that a taxpayer is dealing withanother party at arm’s length. A U.S. taxpayer may obtain approval in advance of itstransfer pricing methodology through an Advance Pricing Agreement (“APA”). An APA is aprospective binding agreement between the taxpayer and the IRS regarding the correcttransfer pricing methodology under section 482. However, more often, multinationalcompanies prepare their own transfer pricing studies based on section 482 principles tosupport their transfer pricing practices. Although not approved by the IRS, these transfer-pricing studies are used to support the company’s transfer pricing methodology in the eventof an audit. These transfer pricing studies can be prepared by accounting firms, or they canbe prepared internally by the companies.2 The Importer’s Transfer Pricing Policy provides that discounts and rebates, if any, aretaken into account prior to the importation of the merchandise.

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The transfer pricing policy states that the variable costs borne by the Im-porter take into account the following (which are deducted from line 01 of theAnalytical Income Statement (“AIS”))3:

- Post invoice adjustments (including credit notes for quality, resale priceadjustments, claims. . .), which will rarely occur,- Customer discounts, and- Variances between the rebates used to calculate the transfer prices andactual costs.

According to the policy, none of the variable costs and profits (including theunknown discounts and rebates, which may be subject to value manipulationof the parties), are subject to any post-importation price adjustments. There-fore, the transfer price declared to CBP upon importation is fixed with respectto the application of the variable costs. Any fluctuations to the variable costsare not re-invoiced or remitted back to the seller/exporter. 4 The company’sTransfer Pricing Determination Policy established that fixed expenses in theU.S., for example, structural costs, depreciation and interest on workingcapital, would no longer be deducted from the invoice accompanying a ship-ment to the Importer, but rather, would be separately invoiced and paid to theImporter on a monthly basis after importation. In other words, via Recon-ciliation, the Importer seeks to report the actual, final amount paid to theSeller for the imported goods by reducing the value originally declared at thetime of entry by the amount of fixed expenses paid by the Seller to theImporter. With the exception of the fixed costs, all elements of the transferprice are declared to CBP upon the importation; these elements are known,included in the value of the merchandise, and not subject to change.

For products to be warehoused by the Importer before resale, the transferprice is calculated as follows:

Transfer price for a sale between the Importer and Seller = Expected salesprice (“FSP”) minus logistic variable costs (“LVC”) of the Importer minusactual or expected variable costs and a percentage of margin (profit).

The Importer calculated the FSP to customers for each article taking intoaccount the amount of sales net of cash customer discount and rebates. TheImporter calculated LVC for each article from all forecasts relating to all salesex-storage taking into account: variable transport costs from the warehouseto the customer (transportation cost plus insurance, duty, customs dutybrokerage, variable storage), and variable transport costs from the producerto the warehouse (particularly the duties) incurred by the Importer. Accord-ing to the policy, the variable costs incurred by the Importer include:

- Post invoice adjustments (including credit notes for quality, sale priceadjustment claims . . .), which will rarely occur, deducted from line 01 ofthe AIS- Customer discounts, deducted from line 01 of the AIS,

3 The Analytical Income Statement (“AIS”) is the income statement used to reflect theprofit/loss of the business units. It is generated by the general ledger system. Theinformation is accumulated for each business unit for the year and makes up the auditedfinancial statements.4 If there are any post-importation adjustments for a variable expense (such as in the rareinstance when there is a change in business practice), these adjustments are borne by theImporter, and, therefore, do not affect the transaction value or the price actually paid orpayable to the Seller.

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- Logistic costs: storage costs, rental and maintenance of trucks andcontainers (line 07 of the AIS), and- Variances between the forecast (rebates and variable logistic costs) usedto calculate the transfer price, and the actual costs.

Once again, pursuant to the company’s Transfer Pricing DeterminationPolicy, none of these variable costs are stated to be re-invoiced or remittedback to the seller/exporter.

The company’s Transfer Pricing Determination Policy directs that onlymonthly budgeted fixed costs, incurred in the U.S., are to be analyzed quar-terly and adjusted prospectively, if needed. In other words, the transferpricing policy included a procedure to quarterly verify the actual versusbudgeted fixed cost amounts as well as an explanation for any possiblevariances. The policy defines fixed costs as the following items of the incomestatement:

- Selling expenses,- Commissions received/paid (only the commissions paid to the sub-agents),- General and administrative expenses,- Miscellaneous income and expenses (except the income allocated to thisitem corresponding to fixed costs invoicing),- Interest on working capital, and- Depreciation of assets not directly attributable to manufacturing.

These fixed costs are allocated to the resale activity. On the other hand, asis stated above, variable costs and profits are not subject to any post-importation price adjustments, as fluctuations in variable costs are not re-mitted to the seller. Additionally, the Importer books its adjustments for thefixed cost reimbursement as “Other Income.” The Importer applied for andwas approved to participate in the Reconciliation Prototype Program.

The company also provided CBP with a copy of an inter-company memo-randum, dated December 20, 1999, which sets out the following method tocalculate the fixed costs: budgeted fixed costs (structural costs + depreciation+ interest on working capital). The budgeted fixed costs are directly invoicedas 1/12 (based on the approved budget amount), and the income is allocatedto line 31 of the AIS (miscellaneous income and expenses).5 This method isset in advance, and according to the new information submitted by theImporter, the amount of the fixed costs is known at the beginning of eachyear. The element that is not known at the time of importation is the level oftotal imports across which the fixed costs are allocated in a particular month.Therefore, the fixed costs paid are set; it is merely the allocation of those fixedcosts to the individual import entries that cannot be fixed until after themonth has passed.

The specified percentage of margin, referenced in the Company’s TransferPricing Determination Policy, is calculated based on a study of comparableand available data, concerning sales in the uncontrolled market to allow areasonable profit to be earned. The margin is confirmed as often as requiredby Section 482 of the Internal Revenue Code, 26 U.S.C. §482 and the Section

5 This method is implemented by dividing the value of the particular import by the total“fixed costs” as reported on the Importer’s income statement. The resulting ratio ismultiplied by 1/12 of the total annual fixed costs to derive the amount of fixed costsallocated to a particular entry.

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482 regulations, by a joint external study of the importer’s and exporter’sfinance departments. The Importer also submitted a transfer pricing study,dated September 20, 2001, prepared by PricewaterhouseCoopers, LLP, forCBP review, which was not provided to CBP at the time HRL 547654 wasdecided. This transfer pricing study further confirms the margin the Im-porter utilizes in establishing its transfer price. The Importer’s transferpricing study also determines the range of profit margins the Importer’sprofit must fall within in order for the transfer price to be at arm’s length. If,depending on the level of imports across which the fixed costs are allocated,the allocation of fixed costs causes the Importer’s profit to fall outside of therange, the Importer must make the necessary adjustments to bring its trans-fer price within the range to be at arm’s length.

Although certain post-importation price adjustments may occur pursuantto the Policy, the Importer is of the view that transaction value may beapplied because the price is determined pursuant to an objective formula inplace prior to importation. The Importer is also of the view that annual priceadjustments made pursuant to the Policy should be taken into account andthat Reconciliation should be used as the vehicle to make the adjustment.Finally, the Importer provided information and documentation in an attemptto establish that the related party price was acceptable under the circum-stances of sale test, and to clarify the company’s transfer pricing policy.

As indicated, the original ruling issued to the Importer determined thattransaction value could not be applied because there was no fixed price orobjective formula in place for determining the price prior to importation. Inview of this finding, the ruling did not analyze the circumstances of the saleto determine whether the related party transaction value was acceptable orwhether post-importation price decreases were precluded under 19 U.S.C.§1401a(b)(2)(2). Instead, after finding that the alternate methods of ap-praisement under 19 U.S.C. §1401a(b) through (e) were not applicable due tothe unavailability of information, CBP appraised the merchandise undersection 402(f) of the TAA (19 U.S.C. §1401a(f)), using a modified transactionvalue approach and permitted the Importer to use its figures through Rec-onciliation.

ISSUE:

1. Does the related party price, determinable pursuant to the transferpricing policy, constitute a formula at the time of importation forpurposes of determining transaction value, and if so, is it acceptableto take post-importation price adjustments (upward and downward)into account in determining transaction value?

2. Do the circumstances of sale establish that the price actually paid orpayable by the Importer/Buyer to the Exporter/Seller is not influ-enced by the relationship of the parties and is acceptable for thepurposes of using transaction value?

LAW AND ANALYSIS:

Merchandise imported into the United States is appraised for customspurposes in accordance with Section 402 of the Tariff Act of 1930, as amendedby the Trade Agreements Act of 1979 (TAA; 19 U.S.C. §1401a). The primarymethod of appraisement is transaction value, which is defined as “the price

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actually paid or payable for the merchandise when sold for exportation to theUnited States,” plus amounts for certain statutorily enumerated additions tothe extent not otherwise included in the price actually paid or payable. See19 U.S.C. §1401a(b)(1).

As provided in 19 U.S.C. §1401a(b)(4):

(A) The term “price actually paid or payable” means the total payment(whether direct or indirect, and exclusive of any costs, charges, or expensesincurred for transportation, insurance, and related services incident to theinternational shipment of the merchandise from the country of exportation tothe place of importation in the United States) made, or to be made, forimported merchandise by the buyer to, or for the benefit of, the seller.

Section 152.103(a)(1), CBP Regulations (19 CFR §152.103(a)(1)) provides,in pertinent part, as follows:

In determining transaction value, the price actually paid or payable willbe considered without regard to its method of derivation. It may be theresult of discounts, increases, or negotiations, or may be arrived at by theapplication of a formula, such as the price in effect on the date of exportin the London Commodity Market.

However, rebates, or any other decrease in the price actually paid orpayable made or effected after the date of importation are to be disregardedfor the purposes of determining transaction value. 19 U.S.C. §1401a(b)(4)(B).

1. Does the related party price, determinable pursuant to thetransfer pricing policy, constitute a formula at the time of im-portation for purposes of determining transaction value, and ifso, is it acceptable to take post-importation price adjustments(upward and downward) into account in determining transac-tion value?

Related party transactions involve initial transfer prices that may besubject to adjustment after importation. It is common for the transfer priceto be determined in accordance with the company’s transfer pricingpolicy/formula. The term “transfer pricing policy” refers to Advance PricingAgreements (“APA”s), transfer pricing studies prepared in accordance with26 U.S.C. §482 (the IRS transfer pricing statute) or its foreign equivalent,and/or legally binding inter-company agreements/memoranda. Oftentimessuch policies provide the method for determining the transfer price, whichmay include the setting of an initial price and then making various adjust-ments to the price after the importation based on specified criteria. Forexample, the transfer pricing policy may provide for the transfer price to beinitially set based on certain estimated costs and for adjustments to be madeat the end of the year based on the actual costs incurred. Further, adjust-ments may be made to account for certain additional expenses that may beincurred by the parties. In some cases, the transfer pricing policy mayprovide for year-end “compensating adjustments” to the transfer price tocomply with the requirements of an APA entered into by the U.S. party andthe IRS. In other words, the adjustments are taken to bring the profitmargins of the companies within the range of profit margins established onthe basis of a study of comparable data from the uncontrolled market, inorder for the transfer price to be at arm’s length for tax purposes. Depending

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on the circumstances presented, such adjustments could similarly affectwhether the price is considered fixed or determinable by an objective formulaat the time of importation.

CBP has determined that where the price is not fixed at the time ofimportation, transaction value is not applicable. See e.g., HRL 545618, datedAugust 23, 1996; HRL 545242, dated April 16, 1995; HRL 545798, datedOctober 28, 1994; HRL 546231, dated February 10, 1997; and HRL 546421,dated March 27, 1998. CBP has determined that the fixed price rule issatisfied when the price is determinable by an objective formula agreed uponprior to importation. In applying this provision, CBP ruled in HRL 542701,dated April 28, 1982, TAA No. 47, and subsequent rulings, that in situationsin which the price paid or payable is determined pursuant to a formula, a firmprice need not be known or ascertainable at the time of importation. Nev-ertheless, it is necessary for the formula to be fixed at importation so that afinal sales price can be determined at a later time on the basis of some eventor occurrence over which neither the seller nor the buyer has any control. Seealso HRL 545622, dated April 28, 1994.

CBP has previously determined that if a transfer price is subject to post-importation adjustments and those adjustments are within the control ofeither the buyer or the seller, the formula exception to the fixed price rulewould not apply. See HRL 544680, dated June 26, 1992 (CBP did not considerthe parties’ arrangement to be a “formula” because the final determination tomake additional payments depended on a subjective factor within the controlof the importer, i.e., importer’s inspection of the imported merchandise). SeeHRL 545388, dated October 21, 1994 (the parties entered into a supplementalagreement after the importation decreasing certain royalty payments; CBPfound that this was a decrease in the price that was “made or otherwiseeffected...after the date of importation...” and should be disregarded).

In many cases, the events in the transfer pricing formula that trigger thepost-importation price adjustments (for example, the costs incurred or theprofit earned) are to some extent within the control of the buyer and/or theseller. Accordingly, based on these prior decisions, many transfer pricingpolicies would not qualify as formulas within the meaning of 19 CFR§152.103(a)(1). In those cases, transaction value determined under 19 U.S.C.§1401a(b) could not be applied, even if the relationship between the partiesdid not affect the price. This result is not consistent with transaction valuebeing the preferred method of appraisement.

Further, when transaction value cannot be applied, the merchandise mustbe appraised using one of the other valuation methods in 19 U.S.C. §1401a.In a few cases, CBP has determined that when transaction value could not beapplied because the transfer price was not “fixed,” the merchandise should beappraised using a modified transaction value under the fallback method, e.g.,HRL 545618, dated August 23, 1996; HRL 547654, dated November 8, 2001;and, HRL 544845, dated November 9, 1993. However, under the customsvalue law, the fallback method may only be used when all previous valuationmethods cannot be applied. In HRL 545618, HRL 547654, and HRL 544845,CBP applied the fallback method of appraisement and permitted the import-ers to claim upward and downward post-importation adjustments becausethe information about the applicability of other methods was not available.

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In HRL 547654, the price for the goods was arrived at pursuant to amethodology that included an initial sum subject to adjustments. The Im-porter provided CBP with limited details of the transaction and little docu-mentation explaining the relevant transfer pricing policies. Thus, althoughthere was a formula in HRL 547654 that determined the price prior toimportation and allowed for certain post-importation adjustments, CBPfound that the transfer pricing policy was not fixed and could not be consid-ered an objective “formula” within the meaning of 19 CFR §152.103(a)(1)because the parties could control whether and to what degree the price wouldbe adjusted. Accordingly, the use of transaction value was precluded for theproposed billing structure. However, CBP appraised the merchandise undersection 402(f) of the TAA (19 U.S.C. §1401a(f)), using a modified transactionvalue approach and permitted the Importer to claim downward post-importation adjustments through Reconciliation. While this analysis wasconsistent with CBP’s interpretation at the time, we now conclude thatnotwithstanding that there may be some element of control, additional con-siderations should be taken into account in evaluating whether an intercom-pany transfer pricing formula is an objective formula when it provides forpost-importation adjustments to the price. Furthermore as one commenternotes, the use of other valuation methods, including the Fallback method willstill be utilized if the requirements set forth in this decision are not satisfied.

After examining the additional submissions which have clarified the Im-porter’s transfer pricing policy, CBP finds that the Importer’s transfer pricingpolicy constitutes an objective formula. It is CBP’s view that when analyzingwhether transaction value may be used between related parties, which mayresult in post-importation adjustments, certain factors should be examined todetermine whether there is a fixed price, pursuant to a formula.

In the notice of proposed revocation, CBP noted that since the followingcriteria were met, the use of transaction value was acceptable: (1) a written“Intercompany Transfer Pricing Determination Policy” sets out how thetransfer price is to be determined prior to the importation; (2) theimporter/buyer is the U.S. taxpayer, and it uses its transfer pricing method-ology in filing its corporate income tax returns; (3) the company’s transferpricing policy specifically covers the products for which the value is to beadjusted; (4) the policy specifies what adjustments must be made to thetransfer price, and the company provides detailed explanations and calcula-tions of the adjustments incurred and claimed in the United States; and, (5)there is an absence of other conditions which may indicate that the compen-sating adjustments do not result in an arm’s length price between the parties.

Multiple comments were submitted concerning this list of factors. Twocommenters requested clarification whether this list is disjunctive or con-junctive, considering CBP’s statements that no single factor is determinativeand whether an objective formula exists will be made on a case-by-case basis.Simply stated, this list of factors is conjunctive; accordingly, all of the criteriamust be met in order to claim post-importation adjustments.

Upon further consideration, CBP has concluded that to the extent a trans-fer pricing policy is not prepared in recognition of IRS rules, the policy couldbe viewed as within the control of the parties, and therefore, not constitute aformula within the meaning of 19 CFR §152.103(a)(1). Accordingly, factor (1)is clarified to provide note that the transfer pricing policy must be preparedin the manner consistent with Section 482 of the Internal Revenue Code, 26

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U.S.C. §482, whether such policy is agreed to by the IRS, as in the case of anAPA, or not. Further discussion pertaining to this change is discussed belowconcerning factor (2).

One commenter suggested CBP adopt a new factor in applying the circum-stances of the sale test by stating that whenever the “objective formula”pricing requirement for transaction value is met, then, by definition, thecircumstances of the sale test is met. Another commenter referred to factor(5) and asked whether this factor is synonymous with the circumstances ofthe sale or test values methods that CBP considers in analyzing whether therelationship between the related parties influenced the price.

It is well-settled that transaction value between a related buyer and selleris acceptable if an examination of either the circumstances of sale indicatesthat their relationship did not influence the price or if the transaction valueof the imported merchandise closely approximates certain test values. 19U.S.C. §1401a; 19 CFR §152.103. This continues to be the requirement per19 U.S.C. §1401a. However, the factors listed are set forth to address the“payable” aspect of the price actually paid or payable in transaction value andwhether potential post-importation adjustments, particularly downward ad-justments, that under prior CBP decisions could not be taken into account,may now be accepted. If an import transaction involves post-importationadjustments, and an importer seeks to claim those downward adjustments(as upward adjustments always required reporting), then its transfer pricingpolicy must constitute a “formula” within the meaning of 19 CFR§152.103(a)(1). Further, those adjustments must satisfy either the circum-stances of the sale or test values methods. Therefore, CBP does not agreethat if the formula requirement is met, the circumstances of the sale test ismet. Rather, the post-importation analysis has two requirements: (1) thereis a “formula” within the meaning of 19 CFR §152.103(a)(1) that is analyzedusing the factors, so that properly documented adjustments may be claimedif they occur; and (2) the parties satisfy the requirements under 19 U.S.C.§1401a to show that the relationship did not influence the price. CBP’sanalysis under these two requirements is not overlapping; one of the require-ments deals with the appropriateness of claiming the post-importation ad-justments in cases that fall under CBP’s interpretation of a formula, fixedprior to the importation, and the other requirement goes to the validity of theprices declared to CBP. Moreover, rather than merely reflecting the circum-stances of the sale or test values methods, factor (5) was meant to addressother considerations that may affect the price, such as those referred to in 19CFR §152.103(j). For example, such considerations may include the adjust-ments claimed for defective merchandise because such adjustments are sub-ject to separate regulatory standards.

One commenter suggested the deletion of the reference to the U.S. taxpayerin factor (2) because this reference would preclude the adjustments made toa transfer price in a situation where both the buyer and seller are not U.S.taxpayers, and thus, not necessarily subject to the U.S. IRS rules. CBP ismindful of this concern; however, to provide certainty, it is necessary for thetransfer pricing policies to meet the U.S. legal standards. Accordingly, CBPdeclines to accept this commenter’s suggestion.

Another commenter alleges that factors (1) and (4) do not indicate the levelof detail needed in the transfer pricing policy in order to be sufficient forcustoms purposes. Also, there are concerns about factors (3) and (5) becausethese factors are said to be subject to interpretation and not easily enforced.

12 CUSTOMS BULLETIN AND DECISIONS, VOL. 46, NO. 23, MAY 30, 2012

For example, the commenter claims that factor (3) does not indicate howdetailed the imported products have to be described, and factor (5) providesCBP with an ability to reject transfer pricing policies that do not sufficientlysubstantiate that the prices at issue are at arm’s length.

Factors (1) and (4) taken together essentially require the importer tospecify in its transfer pricing documentation how the adjustments are deter-mined and maintain accounting details from its books and/or financial state-ments to support the claimed adjustments. The specificity of the informationwill be evaluated on a case-by-case basis; however, importers are encouragedto keep detailed records of their post-importation adjustments and all rel-evant documents that may assist CBP in its analysis. Factor (3) requires thetransfer pricing policy to cover the goods for which an adjustment may laterbe made. For example, if the company imports vehicles and parts, CBP willnot accept adjustments to the value of imported vehicles, if the company’stransfer pricing policy only covers vehicle parts.

Taking into account all of the comments submitted with respect to CBP’slist of factors, CBP revised the list of factors used to determine whether anobjective formula is in place prior to importation for purposes of determiningthe price within the meaning of 19 CFR §152.103(a)(1) as follows:

(1) A written “Intercompany Transfer Pricing Determination Policy” isin place prior to importation and the policy is prepared taking IRScode section 482 into account;

(2) The U.S. taxpayer uses its transfer pricing policy in filing itsincome tax return, and any adjustments resulting from the trans-fer pricing policy are reported or used by the taxpayer in filing itsincome tax return;

(3) The company’s transfer pricing policy specifies how the transferprice and any adjustments are determined with respect to allproducts covered by the transfer pricing policy for which the valueis to be adjusted;

(4) The company maintains and provides accounting details from itsbooks and/or financial statements to support the claimed adjust-ments in the United States; and,

(5) No other conditions exist that may affect the acceptance of thetransfer price by CBP.

Considering these factors in this particular case, we note that since theImporter claimed adjustments for the fiscal years 2001 and 2002, and thewritten transfer pricing policy was executed by relevant parties on February11, 2000, the agreement, and thus, the formula was in effect prior to theimportations subject to this internal advice request. Further, the agreementwas prepared taking the IRS rules into account. We also note that theformula had an impact on the reported Customs values. Since the downwardadjustments are reported in the Importer’s accounting books as adjustmentsto “Other Income” and are made quarterly,6 these adjustments specificallyresult in lower declared values for the merchandise. Such transfer pricing

6 Adjustments made on the yearly or quarterly basis are more acceptable than adjustmentsbooked in lump sum at the end of the multi-year APA term (if applicable), for example. If

13 CUSTOMS BULLETIN AND DECISIONS, VOL. 46, NO. 23, MAY 30, 2012

adjustments indirectly relate to the originally-reported price actually paid bythe Importer to the related Seller (adjustments must, directly or indirectly,relate to the value of the merchandise). In this case, based on the informationprovided by the Importer, the related party price (and the adjustmentsthereto) are determined pursuant to their transfer pricing policy. The Im-porter provided CBP with documentation that showed what adjustments aremade on an entry-by-entry basis; therefore, adjustments are related to spe-cific entries upon importation. The transactions in question are also notsubject to any other consideration that may affect transaction value. Finally,the documents submitted by the Importer show how the adjustments arecalculated and claimed. Specifically, only the budgeted fixed costs (and notthe variable costs, absorbed by the Importer), incurred in the United Statesare adjusted after importation. None of the variable costs are stated to bere-invoiced or remitted back to the Seller/Exporter. On the other hand, theamount of the fixed costs is known at the beginning of each year and is set inadvance, pursuant to the inter-company memorandum, dated December 20,1999. The element that is not known at the time of importation is the levelof total imports across which the fixed costs are allocated in a particularmonth. Therefore, the costs paid are set; it is merely the allocation of thosecosts to the individual import entries that cannot be fixed until after themonth has passed. Taking into account the adjustments based on the fixedcosts, the analysis undertaken by PricewaterhouseCoopers, LLP concludedthat the Importer’s average profit ratio was within the range for comparabletransactions by similarly situated companies and that the Importer’s imple-mentation of its transfer pricing policy conformed to the applicable U.S. lawsand regulations.

While some of the provisions of the transfer pricing policy in this particularcase might be considered to be within the “control” of the parties under theprior understanding of “control” in CBP’s previous decisions, such as theinitial determination of the budgeted fixed costs by the company, the satis-faction of the factors set out above reduces the possibility of price manipula-tion and subjectivity in claiming post-importation adjustments. Here, theamount of fixed costs is set in advance and later simply allocated to theindividual imports. Further, the transfer pricing policy includes a procedureto quarterly verify the actual versus budgeted fixed cost amounts as well asan explanation as to any possible variances. Therefore, we conclude that inthis particular case and based on the above referenced factors, the Importer’stransfer pricing policy may be considered an objective formula in place priorto importation for purposes of determining the price within the meaning of 19CFR §152.103(a)(1).

Therefore, CBP is of the view that post-importation adjustments (bothdownward and upward), to the extent they occur, may be taken into accountin determining the transaction value under 19 U.S.C. §1401a(b). We find thedownward adjustments in the transfer price made pursuant to the validtransfer pricing study are not rebates of, or other decreases in, the priceactually paid or payable that are made or otherwise effected between thebuyer and seller after the date of importation of the merchandise into theUnited States (see 19 U.S.C. §1401a(b)(4)(B)). Instead, the post-importationadjustments represent an element of the determination of the price actuallythe adjustments are made at the end of the term, the importers must show that suchadjustments would not result in the importers being out of the transaction value forCustoms purposes).

14 CUSTOMS BULLETIN AND DECISIONS, VOL. 46, NO. 23, MAY 30, 2012

paid or payable in accordance with 19 CFR §152.103(a)(1). Therefore, thepost-importation adjustments made pursuant to the transfer pricing policy inthis case simply reflect what should have been reported as the invoice priceupon entry, had the exact price information of the imported merchandisebeen available at the time. Any such changes in the transfer price should beimmediately reported to CBP.

In this particular case, the Importer uses Reconciliation to report down-ward and upward post-importation adjustments to the value initially de-clared upon the importation of the merchandise. Reconciliation allows theimporter, using reasonable care, to file entry summaries with CBP with thebest available information, with the mutual understanding that certain ele-ments, such as the declared value, remain outstanding. At a later date, whenthe specifics have been determined, the importer files a Reconciliation entrywhich provides the final and correct information. The Reconciliation entry isthen liquidated, with a single bill or refund, as appropriate. Furthermore,the Reconciliation entry can be filed as late as 21 months from the date of thefirst entry summary filed under that Reconciliation with extensions of timeas available to importers. This flexibility makes Reconciliation an idealvehicle to declare all upward or downward post-importation adjustmentswithin the timeframe allowed by in the APA or a transfer pricing study orpolicy that directly (or indirectly) relate to the value of the merchandise.Thus, the Importer should continue to report all of its adjustments to CBP viaReconciliation.

Commenters reflected general support for the use of the Reconciliationprogram. However, two commenters argued that there is no legal basis formaking participation in the Reconciliation program mandatory in order toreport post-importation adjustments, and that other administrative mecha-nisms should be available to the importers, such as filing of post-entryamendments and protests, to claim downward post-importation adjustmentsand duty refunds. Additionally, recognizing that the Reconciliation programremains a test program at this point in time, a commenter urged CBP toformalize the Reconciliation Prototype Program through the adoption offormal regulations specifically contemplated by 19 U.S.C. §1484(b). Anothercommenter noted that currently the Reconciliation guidelines state thatwhere a refund of an overpayment of duties and fees is sought, an aggregatereconciliation is not available unless the importer is willing to waive the rightto a refund, and thus, refunds in duties can only be made on an entry-by-entry basis.

CBP recognizes the various concerns presented by the trade communityand agrees that while Reconciliation is the most efficient mechanism forclaiming these adjustments the use of Reconciliation is not mandatory. CBPstrongly encourages importers who may anticipate post-importation adjust-ments to use the Reconciliation program. Reconciliation will allow importerstime to gather their information to document that their transactions satisfythat the price is an arm’s length price. If importers claim the adjustmentsoutside of the Reconciliation program, they are expected to demonstrate atthe time of entry that the price is at arm’s length and to provide supportinginformation.

2. Do the circumstances of sale establish that the price actuallypaid or payable by the Importer/buyer to the exporter/seller was

15 CUSTOMS BULLETIN AND DECISIONS, VOL. 46, NO. 23, MAY 30, 2012

not influenced by the relationship of the parties and is accept-able for the purposes of using transaction value?

Having established under the new approach that the Importer’s transferpricing policy constitutes a formula, despite the post-importation adjust-ments being within some control of the buyer and/or the seller, we mustdetermine whether the imported merchandise may be appraised under trans-action value. In order to use transaction value, there must be a bona fide salefor exportation to the United States. In HRL 547654, the question whetherthere was a bona fide sale was not at issue. Therefore, it is assumed thatbona fide sales occurred. In addition, there are special rules that apply whenthe buyer and seller are related parties, as defined in 19 U.S.C. §1401a(g).Specifically, transaction value between a related buyer and seller is accept-able only if the transaction satisfies one of the two tests: (1) circumstances ofthe sale or (2) test values. See 19 U.S.C. §1401a(b)(2)(B); 19 CFR §152.103(l).While the fact that the buyer and seller are related is not in itself grounds forregarding transaction value as unacceptable, where CBP has doubts aboutthe acceptability of the price and is unable to accept transaction value with-out further inquiry, the parties will be given the opportunity to supply suchfurther detailed information as may be necessary to support the use oftransaction value pursuant to the methods outlined above.

In this case, the Importer provided information regarding the circum-stances of the sale. Under this approach, the transaction value between arelated buyer and seller is acceptable if an examination of the circumstancesof the sale indicates that although related, their relationship did not influ-ence the price actually paid or payable. The CBP Regulations specified in 19CFR Part 152 set forth illustrative examples of how to determine if therelationship between the buyer and the seller influences the price. In thisrespect, CBP will examine the manner in which the buyer and seller organizetheir commercial relations and the way in which the price in question wasderived in order to determine whether the relationship influenced the price.If it can be shown that the price was settled in a manner consistent with thenormal pricing practices of the industry in question, or with the way in whichthe seller settles prices with unrelated buyers, this will demonstrate that theprice has not been influenced by the relationship. See 19 CFR§152.103(l)(1)(i)-(ii). In addition, CBP will consider the price not to have beeninfluenced if the price was adequate to ensure recovery of all costs plus aprofit equivalent to the firm’s overall profit realized over a representativeperiod of time. 19 CFR §152.103(l)(1)(iii). These are examples to illustratethat the relationship has not influenced the price, but other factors may berelevant as well.7

Detailed information has been confidentially provided by the Importerregarding the Seller’s sale price data for the imported products. In view ofthis information submitted by the Importer concerning the prices of themerchandise sold to related and unrelated buyers around the world, whichare established pursuant to the company’s Transfer Pricing DeterminationPolicy and further supported by the transfer pricing study prepared by

7 The fact that the “fixed price” requirement has been satisfied based on the acceptance ofthe Importer’s transfer pricing policy, prepared for tax purposes, as formula, does not meanthat the circumstances of the sale test is satisfied. The Importer must show that therelationship has not influenced the price.

16 CUSTOMS BULLETIN AND DECISIONS, VOL. 46, NO. 23, MAY 30, 2012

PricewaterhouseCoopers, LLP, CBP finds the examination of whether thetransfer pricing study itself (prepared for tax purposes), satisfied the circum-stances of the sale test, to be unnecessary. Rather, the Importer has submit-ted detailed charts including data from 2000 and 2001 pertaining to theSeller’s global sales of the imported products. The charts show the name ofthe customer, the country, the material number and name, the quantity, andunit prices. In addition, the charts include the total volumes and value aswell as the average per unit sales price. They also include a weighted averageper unit sale price. The charts allow a comparable product-by-product com-parison of export sales to the United States (both related and unrelatedcustomers) with export sales to third countries. There are numerous ex-amples of sales of identical products (identified by either material name ormaterial number) at comparable unit prices to unrelated customers both inthe United States and abroad. An examination of the data reveals that theprice for a particular product can vary throughout the year even to the samecustomer. The Importer states that the reason for this is that sales prices aredriven by market conditions of supply and demand. In particular, most of theimported products are price sensitive depending upon numerous consider-ations such as the quantity of product purchased, the timing of the demand,and availability as to alternative sources. Other considerations that mayvary the price include whether the customer has a long term purchaseagreement or whether a sale is merely a “spot purchase.” The customers forsuch products are often in industries whose business is cyclical in nature andvery sensitive to changes in general economic conditions. These fluctuatingmarket conditions are reflected in the varying sales prices for these products.Notably, these price differences occur equally for sales to unrelated parties aswell as to related parties. Therefore, sometimes the prices can be lower forsales to parties that are not related than the prices for sales to relatedparties.

Based on the Importer’s explanation of the differences in prices betweenrelated and unrelated parties and detailed documentation submitted to CBP,we find that the related party prices are settled in a manner consistent withthe way the seller settles prices in sales to unrelated buyers. Although CBPgenerally requires that the comparison sales to unrelated buyers be sales tobuyers in the United States, CBP will consider evidence regarding sales tounrelated buyers in other countries, provided the Importer presents an ad-equate explanation as to why it is relevant to the transactions at issue. Inthis instance, the Importer presented an adequate explanation as to why it isrelevant to the transactions at issue and accounted for the differences in unitprices. The Importer also submitted price lists for the merchandise sold bythe Seller to the unrelated parties in the United States. Thus, the Importersatisfied the circumstances of the sale test. Accordingly, transaction value isacceptable method of appraisement in the instant case.

HOLDING:

Based on the above referenced factors, in this case the Importer’s transferpricing policy may be considered a formula in place prior to importation forpurposes of determining the price within the meaning of 19 CFR§152.103(a)(1). Therefore, all adjustments to the price pursuant to theImporter’s transfer pricing policy, which were reported to CBP, shall be takeninto account in determining transaction value. Lastly, we find that the

17 CUSTOMS BULLETIN AND DECISIONS, VOL. 46, NO. 23, MAY 30, 2012

related party prices are settled in a manner consistent with the way the sellersettles prices in sales to unrelated buyers.

Please note that this decision is issued on the assumption that all of theinformation furnished in connection with the consideration of this matter,including the internal advice and reconsideration requests, is accurate andcomplete in every material respect. Further, the application of this decisionis subject to verification by the Office of Regulatory Audit should an audit beconducted.

This decision should be mailed by your office to the party requestingInternal Advice no later than 60 days from the date of this letter. On thatdate, the Office of Regulations and Rulings will make the decision availableto CBP personnel, and to the public on the CBP Home Page on the WorldWide Web at www.cbp.gov, by means of the Freedom of Information Act, andother methods of public distribution.

EFFECT ON OTHER RULINGS:

Headquarters Ruling Letter (“HRL”) 547654, dated November 9, 2001, ishereby revoked.

Sincerely,IEVA K. O’ROURKE

forMYLES B. HARMON,

DirectorCommercial and Trade Facilitation Branch

18 CUSTOMS BULLETIN AND DECISIONS, VOL. 46, NO. 23, MAY 30, 2012

PROPOSED MODIFICATION OF RULING LETTER ANDPROPOSED MODIFICATION OF TREATMENT RELATINGTO THE ELIGIBILITY OF RECOVERED REFRIGERANT

GAS FOR PREFERENTIAL TARIFF TREATMENT UNDERTHE NAFTA

AGENCY: U.S. Customs and Border Protection; Department ofHomeland Security.

ACTION: Notice of proposed modification of a ruling letter and pro-posed modification of treatment relating to the eligibility of recoveredrefrigerant gas for preferential tariff treatment under the NAFTA.

SUMMARY: Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C.1625 (c)), as amended by Section 623 of Title VI (Customs Modern-ization) of the North American Free Trade Agreement Implementa-tion Act (Pub.L. 103–182, 107 Stat. 2057), this notice advises inter-ested parties that Customs and Border Protection (CBP) proposes tomodify a ruling letter relating to the eligibility of recovered refriger-ant gas for preferential tariff treatment under the NAFTA. CBP alsoproposes to modify any treatment previously accorded by CBP tosubstantially identical transactions. Comments are invited on thecorrectness of the proposed actions.

DATES: Comments must be received on or before June 29, 2012.

ADDRESSES: Written comments are to be addressed to Customsand Border Protection, Office of International Trade, Regulationsand Rulings, Attention: Trade and Commercial Regulations Branch,799 9th Street, N.W. - 5th Floor, Washington, D.C. 20229–1179.Submitted comments may be inspected at Customs and BorderProtection, 799 9th Street N.W., Washington, D.C. 20001 duringregular business hours. Arrangements to inspect submittedcomments should be made in advance by calling Mr. Joseph Clarkat (202) 325–0118.

FOR FURTHER INFORMATION CONTACT: Karen Greene,Valuation and Special Programs Branch: (202) 325–0041.

SUPPLEMENTARY INFORMATION:

BACKGROUND

On December 8, 1993, Title VI (Customs Modernization) of theNorth American Free Trade Agreement Implementation Act (Pub. L.103–182, 107 Stat. 2057) (hereinafter “Title VI”), became effective.Tile VI amended many sections of the Tariff Act of 1930, as amended,and related laws. Two new concepts which emerge from the law are

19 CUSTOMS BULLETIN AND DECISIONS, VOL. 46, NO. 23, MAY 30, 2012

“informed compliance” and “shared responsibility.” These con-cepts are premised on the idea that in order to maximize voluntarycompliance with customs laws and regulations, the trade communityneeds to be clearly and completely informed of its legal obligations.Accordingly, the law imposes a greater obligation on CBP to providethe public with improved information concerning the trade commu-nity’s responsibilities and rights under the customs and related laws.In addition, both the trade and CBP share responsibility in carryingout import requirements. For example, under section 484 of theTariff Act of 1930, as amended (19 U.S.C. §1484), the importer ofrecord is responsible for using reasonable care to enter, classify andvalue imported merchandise, and to provide any other informationnecessary to enable CBP to properly assess duties, collect accuratestatistics and determine whether any other applicable legal require-ment is met.

Pursuant to section 625 (c)(1), Tariff Act of 1930, as amended (19U.S.C. 1625 (c)(1)), this notice advises interested parties that CBPproposes to modify a ruling letter pertaining to the eligibility ofrecovered refrigerant gas for preferential tariff treatment under theNAFTA.

Although in this notice, CBP is specifically referring to the modi-fication of New York Ruling Letter (NY) N161355 dated May 20, 2011,this notice covers any rulings on this merchandise which may existbut have not been specifically identified. CBP has undertaken rea-sonable efforts to search existing databases for rulings in addition tothe one identified. No further rulings have been found. Any partywho has received an interpretive ruling or decision (i.e., ruling letter,internal advice memorandum or decision or protest review decision)on the merchandise subject to this notice should advise CBP duringthis notice period.

Similarly, pursuant to section 625 (c)(2), Tariff Act of 1930, asamended (19 U.S.C. 1625 (c)(2)), CBP intends to modify any treat-ment previously accorded by CBP to substantially identical transac-tions. Any person involved in substantially identical transactionsshould advise CBP during this notice period. An importer’s failure toadvise CBP of substantially identical transactions or of a specificruling not identified in this notice, may raise issues of reasonable careon the part of the importer or its agents for importations of merchan-dise subsequent to the effective date of the final notice of this pro-posed action.

In NY N161355, set forth as Attachment A to this document, CBPheld that refrigerant gas recovered in Canada does not qualify forpreferential tariff treatment under the NAFTA. We have reviewedthe ruling and determined that the analysis is not correct. It is now

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our position that refrigerant gas recovered in Canada from usedrefrigeration equipment is eligible for preferential tariff treatmentunder the NAFTA.

Pursuant to 19 U.S.C. 1625(c)(1), CBP proposes to modify NYN161355 and modify any other ruling not specifically identified, inorder to reflect the proper interpretation of the NAFTA according tothe analysis contained in proposed HQ H172315, set forth as Attach-ment B to this document. Additionally, pursuant to 19 U.S.C.1625(c)(2), CBP proposes to modify any treatment previously ac-corded by CBP to substantially identical transactions.

Before taking this action, consideration will be given to any writtencomments timely received.Dated: May 16, 2012

MYLES B. HARMON,Director

Commercial and Trade Facilitation Division

Attachments

21 CUSTOMS BULLETIN AND DECISIONS, VOL. 46, NO. 23, MAY 30, 2012

[ATTACHMENT A]

N161355May 20, 2011

CLA-2–29:OT:RR:NC:2:239CATEGORY: Classification

TARIFF NO.: 2903.49.9010MR. JOHN MULVIHILL

UPS SUPPLY CHAIN SOLUTIONS

ONE UPS WAY

CHAMPLAIN, NY 12919

RE: The tariff classification and status under the North American FreeTrade Agreement (NAFTA), of Chlorodifluoromethane (CAS 75–45–6) fromCanada; Article 509

DEAR MR. MULVIHILL:In your letter dated April 19, 2011, on behalf of your client Pure Chem

Separation Inc., you requested a ruling on the status of Chlorodifluo-romethane from Canada under the NAFTA.

You state in your letter that refrigeration equipment containing chlorodi-fluoromethane (R-22) undergoes repair in Canada. The chlorodifluo-romethane is then extracted into 1000 lb. cylinders and imported into theUnited States.

The applicable subheading will be 2903.49.9010, Harmonized Tariff Sched-ule of the United States (HTSUS), which provides for Halogenated deriva-tives of acyclic hydrocarbons containing two or more different halogens:Other: Other. The general rate of duty will be 3.7 percent ad valorem.

Duty rates are provided for your convenience and are subject to change.The text of the most recent HTSUS and the accompanying duty rates areprovided on World Wide Web at http://www.usitc.gov/tata/hts/.

General Note 12(b), HTSUS, sets forth the criteria for determiningwhether a good is originating under the NAFTA. General Note 12(b), HTSUS,(19 U.S.C. § 1202) states, in pertinent part, thatFor the purposes of this note, goods imported into the customs territory of theUnited States are eligible for the tariff treatment and quantitative limita-tions set forth in the tariff schedule as “goods originating in the territory ofa NAFTA party” only if--(i) they are goods wholly obtained or produced entirely in the territory ofCanada, Mexico and/or the United States; or(ii) they have been transformed in the territory of Canada, Mexico and/or theUnited States so that--(A) except as provided in subdivision (f) of this note, each of the non-originating materials used in the production of such goods undergoes achange in tariff classification described in subdivisions (r), (s) and (t) of thisnote or the rules set forth therein, or(B) the goods otherwise satisfy the applicable requirements of subdivisions(r), (s) and (t) where no change in tariff classification is required, and thegoods satisfy all other requirements of this note; or(iii) they are goods produced entirely in the territory of Canada, Mexicoand/or the United States exclusively from originating materials; or(iv) they are produced entirely in the territory of Canada, Mexico and/or theUnited States but one or more of the nonoriginating materials falling under

22 CUSTOMS BULLETIN AND DECISIONS, VOL. 46, NO. 23, MAY 30, 2012

provisions for “parts” and used in the production of such goods does notundergo a change in tariff classification because--(A) the goods were imported into the territory of Canada, Mexico and/or theUnited States in unassembled or disassembled form but were classified asassembled goods pursuant to general rule of interpretation 2(a), or(B) the tariff headings for such goods provide for and specifically describeboth the goods themselves and their parts and is not further divided intosubheadings, or the subheadings for such goods provide for and specificallydescribe both the goods themselves and their parts, provided that such goodsdo not fall under chapters 61 through 63, inclusive, of the tariff schedule, andprovided further that the regional value content of such goods, determined inaccordance with subdivision (c) of this note, is not less than 60 percent wherethe transaction value method is used, or is not less than 50 percent where thenet cost method is used, and such goods satisfy all other applicable provisionsof this note.

The merchandise does not qualify for preferential treatment under theNAFTA because none of the above requirements are met. Based on the factsprovided, the chlorodifluoromethane does not undergo the requisite tariffshift required by HTSUS General Note 12(t), Chapter 29(6A), “A change tosubheadings 2903.41 through 2903.51 from any other subheading, includinganother subheading within that group, except from headings 2901 through2902”. The merchandise is simply extracted from the refrigeration equipmentinto 1000 cylinders for importation into the United States.

This ruling is being issued under the provisions of Part 181 of the CustomsRegulations (19 C.F.R. 181).

A copy of the ruling or the control number indicated above should beprovided with the entry documents filed at the time this merchandise isimported. If you have any questions regarding the ruling, contact NationalImport Specialist Richard Dunkel at (646) 733–3032.

Should you wish to request an administrative review of this ruling, submita copy of this ruling and all relevant facts and arguments within 30 days ofthe date of this letter, to the Director, Commercial Rulings Division, Head-quarters, U.S. Customs and Border Protection, Regulations & Rulings, 7999th Street N.W. - 7th floor, Washington, DC 20229–1177.

Sincerely,ROBERT B. SWIERUPSKI

DirectorNational Commodity Specialist Division

23 CUSTOMS BULLETIN AND DECISIONS, VOL. 46, NO. 23, MAY 30, 2012

[ATTACHMENT B]

HQ H172315OT:RR:CTF:VS H172315 KSG

JOHN F. MULVIHILL

UPSONE UPS WAY

CHAMPLAIN NY 12919

RE: Used refrigerant gas; modification of NY N161355; recovery of refrig-erant gas; disassembly; NAFTA

DEAR MR. MULVIHILL:This is in response to your letter dated June 7, 2011, submitted on behalf

of Pure Chem Separation, Inc., requesting that we modify NY N161355 withrespect to the issue of whether imported used refrigerant gas recovered fromused equipment in Canada qualifies as an originating good under the NorthAmerican Free Trade Act (“NAFTA”). Your additional submission datedOctober 24, 2011, was considered in this decision. Upon review of NYN161355, we have determined that the portion of the ruling related to theeligibility of the refrigerant gas for NAFTA preference is incorrect as is setforth below.

FACTS:

Pure Chem imports used refrigerant gas (“R-22”) from Canada. The R-22is recovered from used refrigeration equipment undergoing service or dis-mantling in Canada. The country of origin of the used refrigerant gas and theused refrigeration equipment is unknown. The recovery in Canada requiresspecialized equipment (shown in the photographs that are part of your sub-mission) operated by trained workers. Once the R-22 is recovered, it ispumped into 1000 lb. cylinders for importation into the U.S.

You state that the used refrigeration equipment is classified in subhead-ings 8415.10 through 8415.83, 8418.10 through 8418.69, or 8419.89, HTSUS.CBP ruled in New York (“NY”) N161355, dated May 20, 2011, that R-22 isclassified in subheading 2903.49.9010 of the Harmonized Tariff Schedule ofthe United States (“HTSUS”). CBP also ruled in NY N161355 that used R-22does not qualify for preferential treatment because the tariff shift rule is notsatisfied. You are not contesting the classification of the R-22.

ISSUE:

Whether used R-22 recovered in Canada from used refrigeration equip-ment qualifies for preferential tariff treatment under the NAFTA.

LAW AND ANALYSIS:

General Note 12, HTSUS, incorporates Article 401 of NAFTA into theHTSUS. General Note 12(a)(i) provides, in pertinent part:

(ii) Goods that originate in the territory of a NAFTA party under theterms of subdivision (b) of this note and that qualify to be marked asgoods of Canada under the terms of the marking rules set forth inregulations issued by the Secretary of the Treasury (without regard towhether the goods are marked), when such goods are imported into thecustoms territory of the United States and are entered under a subhead-

24 CUSTOMS BULLETIN AND DECISIONS, VOL. 46, NO. 23, MAY 30, 2012

ing for which a rate of duty appears in the “Special” subcolumn followedby the symbol “CA” in parentheses, are eligible for such duty rate, inaccordance with section 201 of the NAFTA Implementation Act.

Accordingly, the imported product will be eligible for the “Special” “CA”rate of duty provided it is a NAFTA “originating” good under General Note12(b), HTSUS, and qualifies to be marked as a product of Canada under theNAFTA Marking Rules. General Note 12(b), HTSUS, provides, in pertinentpart:

For the purposes of this note, goods imported into the customs territory ofthe United States are eligible for the tariff treatment and quantitativelimitations set forth in the tariff schedule as goods originating in theterritory of a NAFTA party only if—

(i) they are goods wholly obtained or produced entirely in the territory ofCanada, Mexico and /or the United States; or

(ii) they have been transformed in the territory of Canada, Mexico and/orthe United States so that—

(A) except as provided in subdivision (f) of this note, each of the non-originating materials used in the production of such goods undergoesa change in tariff classification described in subdivisions (r), (s) and (t) ofthis note or the rules set forth therein, or

(B) the goods otherwise satisfy the applicable requirements of subdivi-sions (r), (s) and (t) where no change in tariff classification is required,and the goods satisfy all other requirements of this note; or

(iii) they are goods produced entirely in the territory of Canada, Mexicoand/or the United States exclusively from originating materials. (empha-sis added)

The R-22 was not produced entirely in the territory of Canada, Mexicoand/or the United States exclusively from originating materials. Therefore,we must consider whether the imported R-22 is a result of production andsatisfies the tariff-shift rule set forth in GN 12 (t), HTSUS.

The tariff shift rule for goods of subheading 2903.49, HTSUS, underNAFTA is as follows:

A change to subheadings 2903.41 through 2903.51 from any other sub-heading, including another subheading within that group, except fromheadings 2901 through 2902….

The applicable rule set forth in GN 12(t), HTSUS, for goods of subheading2903.49, HTSUS, requires a subheading change except from headings 2901or 2902. Since refrigeration equipment is not classified in subheadings 2901,2902, or 2903 (or chapter 29 at all), the tariff-shift rule would be satisfied

However, in order for imported used R-22 to be considered an originatinggood as provided in GN 12(t), HTSUS, it also must undergo production inCanada.

The disassembly provision set forth at 19 CFR 181.132 states that forpurposes of implementing the rules of origin provisions of General Note 12,HTSUS, and Chapter 4 of the NAFTA, except as provided in 181.132(b),disassembly is considered to be production and a component recovered froma used good disassembled in the territory of a party will be considered to be

25 CUSTOMS BULLETIN AND DECISIONS, VOL. 46, NO. 23, MAY 30, 2012

an originating good provided that the recovered component satisfies all ap-plicable requirements of Annex 401 and Part 181.

In Headquarters Ruling Letter (“HRL”) 563321, dated November 22, 2005,CBP cited to 19 CFR 181.132 and held that used automobile alternators andstarters recovered from vehicles in Mexico were eligible for preferential tarifftreatment. In HRL H004446, dated April 11, 2007, CBP held that thedisassembly in Canada of automotive parts from used vehicles qualified asproduction.

This case involves the recovery of used R-22 from used refrigerant equip-ment in Canada. We find that the recovery of refrigerant gas in Canada fromused equipment is the result of disassembly similar to the disassembly of avehicle in a NAFTA country, and pursuant to 19 CFR 181.132 would consti-tute production for the purposes of GN 12, HTSUS.

We next have to determine if the used R-22 would qualify to be marked asa product of Canada. The hierarchy set forth in 19 CFR 102.11 is applicableto determine the country of origin marking of goods produced in countriesthat are a party to the NAFTA. Pursuant to 19 CFR 102.11, the country oforigin for non-textile goods is determined to be the country in which:

(a)(1) The good is wholly obtained or produced;(a)(2) The good is produced exclusively from domestic materials:Since the used R-22 is of unknown origin, 19 CFR 102.11(a)(1) and (2) are

not satisfied.The next rule is 102.11(a)(3) which provides as follows: Each foreign ma-

terial incorporated in that good undergoes an applicable change in tariffclassification set out in section 102.20 and satisfies any other applicablerequirements of that section, and all other applicable requirements of theserules are satisfied. However, 19 CFR 102.17(b) provides that a foreignmaterial is not considered to have undergone an applicable change in tariffclassification specified in 19 CFR 102.20 if it was disassembled.

The provision in 19 CFR 102.11(b) is inapplicable. The single material thatimparts the essential character to the good, the R-22- is of unknown origin.Therefore, this rule cannot be used to determine the country of origin of theimported R-22.

Since the country of origin of the R-22 cannot be determined pursuant to 19CFR 102.11(a) or (b), the NAFTA preference override set forth in 19 CFR102.19 is triggered. The provision set forth in 19 CFR 102.19(a) provides thatif a good is originating under the NAFTA as in this case, and not determinedunder 19 CFR 102.11(a),102.11(b), or 19 CFR 102.21 to be a good of a singleNAFTA country, the country of origin is the last NAFTA country in which thatgood underwent production other than minor processing, provided that aCertificate of origin has been completed and signed for the good.

In HRL H004446, dated April 11, 2007, CBP applied 19 CFR 102.19(a) toused automobile parts disassembled from vehicles of unknown origin. CBPheld that the origin of the disassembled part was Canada, the last country inwhich the good underwent production other than minor processing, providedthat a Certificate of Origin has been completed and signed for the good.

Similarly in this case, 19 CFR 102.19(a) is applicable and Canada is thelast country in which the good underwent processing other than minor pro-cessing, so the country of origin for marking and duty purposes would beCanada.

26 CUSTOMS BULLETIN AND DECISIONS, VOL. 46, NO. 23, MAY 30, 2012

HOLDING:

The imported used refrigerant gas is an originating good as provided in GN12(t), HTSUS pursuant to 19 CFR 181.132. The country of origin of therecovered refrigerant gas for marking and duty purposes is Canada providedthat a Certificate of Origin has been completed and signed for the good.

EFFECT ON OTHER RULINGS:

NY N161355 is hereby MODIFIED.Pursuant to 19 U.S.C. 1625(c), this ruling will become effective 60 days

after its publication in the Customs Bulletin.A copy of this ruling letter should be attached to the entry documents filed

at the time the goods are entered. If the documents have been filed withouta copy, this ruling should be brought to the attention of the CBP officerhandling the transaction.

Sincerely,MYLES B. HARMON,

Director,Commercial & Trade Facilitation Division

cc: Richard DunkelNISU.S. Customs and Border ProtectionNew York, NY

27 CUSTOMS BULLETIN AND DECISIONS, VOL. 46, NO. 23, MAY 30, 2012

COPYRIGHT, TRADEMARK, AND TRADE NAMERECORDATIONS

(No. 4 2012)

AGENCY: U.S. Customs and Border Protection, Department ofHomeland Security.

SUMMARY: The following copyrights, trademarks, and trade nameswere recorded with U.S. Customs and Border Protection in April2012. The last notice was published in the CUSTOMS BULLETIN onApril 18, 2012.

Corrections or updates may be sent to: Intellectual Property RightsBranch, Regulations and Rulings, Office of International Trade, U.S.Customs and Border Protection, 799 9th Street, NW., 5th Floor, Wash-ington, D.C. 20229–1177.

FOR FURTHER INFORMATION CONTACT: Delois Johnson,Paralegal, Intellectual Property Rights Branch, Regulations & Rul-ings, Office of International Trade, (202) 325–0088.Dated: May 4, 2012

CHARLES R. STEUART

Chief, Intellectual Property Rights BranchRegulations & Rulings

Office of International Trade

28 CUSTOMS BULLETIN AND DECISIONS, VOL. 46, NO. 23, MAY 30, 2012

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31 CUSTOMS BULLETIN AND DECISIONS, VOL. 46, NO. 23, MAY 30, 2012C

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32 CUSTOMS BULLETIN AND DECISIONS, VOL. 46, NO. 23, MAY 30, 2012C

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33 CUSTOMS BULLETIN AND DECISIONS, VOL. 46, NO. 23, MAY 30, 2012C

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34 CUSTOMS BULLETIN AND DECISIONS, VOL. 46, NO. 23, MAY 30, 2012C

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No

35 CUSTOMS BULLETIN AND DECISIONS, VOL. 46, NO. 23, MAY 30, 2012C

BP

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36 CUSTOMS BULLETIN AND DECISIONS, VOL. 46, NO. 23, MAY 30, 2012C

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No

37 CUSTOMS BULLETIN AND DECISIONS, VOL. 46, NO. 23, MAY 30, 2012C

BP

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RD

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K12

–002

844/

5/20

123/

6/20

22Q

XN

ISS

AN

JID

OS

HA

KA

BU

SH

IKI

KA

ISH

AN

o

TM

K12

–002

864/

5/20

125/

19/2

019

GU

M-W

AL

LT

EA

(CH

INE

SE

HE

RB

FL

A-

VO

UR

ED

TE

A)

AN

DD

ES

IGN

CH

UN

GIN

CO

RP

OR

AT

ED

DB

AS

UP

E-

RIO

RT

RA

DIN

GC

O.

No

TM

K12

–002

944/

5/20

1212

/13/

2021

DE

SIG

NO

FA

AP

PL

EA

SIA

NS

UP

PLY

CO

.N

o

TM

K12

–003

344/

19/2

012

2/28

/201

6M

UN

KI

MU

NK

IC

RE

AT

IVE

AP

PAR

EL

CO

NC

EP

TS

,IN

C.

No

TM

K12

–002

904/

5/20

121/

25/2

021

HE

AD

CA

SE

AN

DD

ES

IGN

MY

INN

OV

EN

TU

RE

LL

CN

o

TM

K12

–002

934/

5/20

121/

2/20

22S

TIC

K’N

ST

YL

ET

HE

OR

BFA

CT

OR

YL

IMIT

ED

No

TM

K12

–002

884/

5/20

125/

30/2

016

ET

ER

NIT

YM

OM

EN

TC

ALV

INK

LE

INC

OS

ME

TIC

CO

RP

No

TM

K12

–002

854/

5/20

125/

4/20

20E

UP

HO

RIA

CA

LVIN

KL

EIN

CO

SM

ET

ICC

OR

PN

o

TM

K12

–002

924/

5/20

129/

8/20

19H

AIR

BY

RE

VIT

AL

AS

HA

TH

EN

AC

OS

ME

TIC

S,

INC

.N

o

TM

K12

–002

624/

5/20

125/

24/2

021

YU

YU

SU

N-V

AN

DD

ES

IGN

TIM

EP

LA

ZA

INC

.N

o

TM

K12

–002

634/

5/20

121/

10/2

022

DE

SIG

NC

HA

N,Y

EE

HU

NG

DE

BB

YN

o

TM

K12

–002

644/

5/20

124/

22/2

018

BM

BK

AB

US

HIK

IK

AIS

HA

EK

US

HIN

GU

(TR

AD

ING

AS

XIN

GIN

C.)

No

TM

K12

–002

664/

5/20

123/

27/2

021

RE

BIJ

EC

TA

RE

ST

RA

DIN

GS

AN

o

TM

K12

–002

654/

5/20

124/

22/2

018

BM

BK

AB

US

HIK

IK

AIS

HA

EK

US

HIN

GU

(TR

AD

ING

AS

XIN

GIN

C.)

No

TM

K12

–002

724/

5/20

124/

14/2

019

RE

BIS

MA

RT

AR

ES

TR

AD

ING

S.A

.N

o

38 CUSTOMS BULLETIN AND DECISIONS, VOL. 46, NO. 23, MAY 30, 2012C

BP

IPR

RE

CO

RD

AT

ION

—A

PR

IL20

12

Rec

ord

atio

nN

o.E

ffec

tive

Dat

e

Exp

irat

ion

Dat

e

Nam

eof

Cop

/Tm

k/T

nm

Ow

ner

Nam

eG

M

Res

tric

ted

CO

P12

–000

414/

5/20

124/

5/20

32PA

CK

AG

ING

DE

SIG

NS

FO

RS

HA

RK

VA

CU

UM

CL

EA

NE

R

EU

RO

-PR

OO

PE

RA

TIN

GL

LC

No

TM

K12

–003

334/

19/2

012

8/2/

2021

FU

EL

SH

AR

KC

LA

YP.

RE

NS

HA

WN

o

TM

K12

–002

674/

5/20

124/

29/2

017

NIS

SA

NN

ISS

AN

JID

OS

HA

KA

BU

SH

IKI

KA

ISH

AN

o

TM

K12

–003

294/

19/2

012

2/28

/201

6S

LC

MA

RK

AN

TH

ON

YP

RO

PE

RT

IES

LT

D.

No

CO

P12

–000

374/

5/20

124/

5/20

32PA

CK

AG

ING

DE

SIG

NS

FO

RN

INJA

KIT

CH

EN

SY

ST

EM

EU

RO

-PR

OO

PE

RA

TIN

GL

LC

No

TM

K12

–002

574/

5/20

129/

7/20

14P

OW

ER

FL

AR

EP

OW

ER

FL

AR

EC

OR

PO

RA

TIO

NN

o

CO

P12

–000

394/

5/20

124/

5/20

32M

INIM

E3D

PE

RS

ON

AL

FAC

EP

LU

SH

TO

YD

OL

LS

.

DA

VID

SU

.N

o

TM

K12

–002

684/

5/20

125/

27/2

018

RE

MY

MA

RT

INA

ND

DE

SIG

NE

.R

EM

YM

AR

TIN

&C

O.

No

TM

K12

–002

704/

5/20

129/

10/2

022

CO

OL

.CL

ICK

(ST

YL

IZE

D)

AR

ES

TR

AD

ING

SA

No

TM

K12

–002

764/

5/20

121/

7/20

22S

WA

TC

HS

WA

TC

HA

G(S

WA

TC

HS

A)

(SW

AT

CH

LT

D.)

No

CO

P12

–000

404/

5/20

124/

5/20

32PA

CK

AG

ING

DE

SIG

NS

FO

RS

HA

RK

VA

CU

UM

CL

EA

NE

R.

EU

RO

-PR

OO

PE

RA

TIN

GL

LC

.N

o

TM

K12

–002

744/

5/20

125/

29/2

017

RE

VIT

AL

AS

HA

TH

EN

AC

OS

ME

TIC

S,

INC

.N

o

TM

K12

–002

694/

5/20

127/

13/2

020

GO

NA

L-F

AN

DD

ES

IGN

AR

ES

TR

AD

ING

SA

No

TM

K12

–002

714/

5/20

126/

15/2

020

IN2U

CA

LVIN

KL

EIN

CO

SM

ET

ICC

OR

PO

RA

-

TIO

N

No

39 CUSTOMS BULLETIN AND DECISIONS, VOL. 46, NO. 23, MAY 30, 2012C

BP

IPR

RE

CO

RD

AT

ION

—A

PR

IL20

12

Rec

ord

atio

nN

o.E

ffec

tive

Dat

e

Exp

irat

ion

Dat

e

Nam

eof

Cop

/Tm

k/T

nm

Ow

ner

Nam

eG

M

Res

tric

ted

TM

K12

–002

754/

5/20

127/

9/20

15O

BS

ES

SIO

NC

ALV

INK

LE

INC

OS

ME

TIC

SC

OR

PN

o

TM

K12

–002

734/

5/20

123/

10/2

019

RE

VIT

AB

RO

WA

TH

EN

AC

OS

ME

TIC

S,

INC

.N

o

CO

P12

–000

424/

5/20

124/

5/20

32PA

CK

AG

ING

DE

SIG

NS

FO

RS

HA

RK

VA

CU

UM

CL

EA

NE

R.

EU

RO

-PR

OO

PE

RA

TIN

GL

LC

.N

o

CO

P12

–000

434/

5/20

124/

5/20

32PA

CK

AG

ING

DE

SIG

NS

FO

RS

HA

RK

VA

CU

UM

CL

EA

NE

R

EU

RO

-PR

OO

PE

RA

TIN

GL

LC

.N

o

CO

P12

–000

364/

5/20

124/

5/20

32PA

CK

AG

ING

DE

SIG

NS

FO

RN

INJA

MIX

ER

.

EU

RO

-PR

OO

PE

RA

TIN

GL

LC

No

TM

K12

–002

614/

5/20

129/

3/20

22O

NE

.CL

ICK

AR

ES

TR

AD

ING

SA

No

TM

K12

–002

894/

5/20

126/

26/2

017

GU

MW

AL

LT

EA

CH

UN

GIN

CO

RP

OR

AT

ED

DB

AS

UP

E-

RIO

RT

RA

DIN

GC

O.

No

TM

K12

–003

364/

19/2

012

8/28

/202

1X

LO

OP

JAY-

YS

UN

GL

AS

SE

S.C

OM

No

TM

K12

–002

604/

5/20

122/

11/2

013

SO

AP

RO

CK

SP

INK

,T

OD

DS

.N

o

TM

K12

–002

584/

5/20

128/

11/2

021

WA

LL

AW

AY

AS

HL

EY

FU

RN

ITU

RE

IND

US

TR

IES

,

INC

.

No

TM

K12

–002

594/

5/20

123/

20/2

022

DE

SIG

NE

XP

RE

SS

,L

LC

No

TM

K06

–014

734/

19/2

012

8/6/

2022

TE

XA

SIN

ST

RU

ME

NT

ST

EX

AS

INS

TR

UM

EN

TS

INC

OR

PO

RA

TE

DN

o

CO

P12

–000

384/

5/20

124/

5/20

32PA

CK

AG

ING

DE

SIG

NS

FO

RN

INJA

BL

EN

DE

R.

EU

RO

-PR

OO

PE

RA

TIN

GL

LC

..

No

TM

K12

–003

384/

19/2

012

10/2

/202

1L

UM

IGA

NA

LL

ER

GA

N,

INC

No

40 CUSTOMS BULLETIN AND DECISIONS, VOL. 46, NO. 23, MAY 30, 2012C

BP

IPR

RE

CO

RD

AT

ION

—A

PR

IL20

12

Rec

ord

atio

nN

o.E

ffec

tive

Dat

e

Exp

irat

ion

Dat

e

Nam

eof

Cop

/Tm

k/T

nm

Ow

ner

Nam

eG

M

Res

tric

ted

CO

P12

–000

484/

19/2

012

4/19

/203

2A

LG

EN

IST

PR

OD

UC

TL

AB

EL

SA

ND

PAC

KA

GIN

G

SO

LA

ZY

ME

,IN

C.

No

TM

K12

–003

404/

19/2

012

4/29

/201

8A

CZ

ON

EA

LL

ER

GA

N,

INC

.N

o

TM

K12

–003

424/

19/2

012

2/14

/202

2N

ET

CH

OIC

EN

ET

WO

RK

SE

RV

ICE

SC

OM

PAN

YN

o

TM

K12

–004

034/

27/2

012

3/1/

2014

NIG

HT

FO

RC

EL

IGH

TF

OR

CE

US

A,

INC

.D

/B/A

NIG

HT-

FO

RC

EO

PT

ICS

INC

.

No

TM

K12

–004

184/

27/2

012

8/3/

2020

ZE

RO

ST

OP

LIG

HT

FO

RC

EU

SA

,IN

C.

D/B

/AN

IGH

T-

FO

RC

EO

PT

ICS

,IN

C.

No

TM

K12

–003

024/

18/2

012

7/12

/202

1I

VA

ND

AL

SA

ND

DE

SIG

NU

NIV

ER

SIT

YO

FID

AH

ON

o

TM

K12

–003

014/

18/2

012

11/2

0/20

21B

OT

OX

AL

LE

RG

AN

,IN

C.

No

TM

K12

–003

034/

18/2

012

1/24

/201

5C

OM

FO

RT

FL

EX

KE

NM

AR

KO

PT

ICA

LC

OM

PAN

YN

o

TM

K12

–003

054/

18/2

012

2/12

/201

8D

ES

IGN

SH

AM

BA

LL

AJE

WE

LS

AP

SN

o

TM

K12

–003

064/

18/2

012

1/15

/201

8IM

PR

ES

SIO

NIM

PR

ES

SIO

NB

RID

AL

No

TM

K12

–003

044/

18/2

012

4/3/

2022

R.O

.C.K

.D

AN

IEL

ME

CC

A,

JUL

IEM

EN

DO

ZA

No

TM

K12

–003

124/

18/2

012

2/7/

2022

DT

SA

ND

DE

SIG

ND

AT

AT

RA

NS

FE

RS

OL

UT

ION

S,

LL

CN

o

CO

P12

–000

464/

18/2

012

4/18

/203

2H

EX

BU

GS

PID

ER

.IN

NO

VA

TIO

NF

IRS

T,IN

C.

No

TM

K12

–003

074/

18/2

012

10/4

/202

1V

AL

UE

AD

VA

NT

AG

EN

ISS

AN

NO

RT

HA

ME

RIC

A,

INC

.N

o

TM

K12

–003

144/

18/2

012

12/1

3/20

15C

HA

NL

UU

CH

AN

LU

UIN

C.

No

TM

K12

–003

094/

18/2

012

11/2

9/20

21JE

TF

UE

LD

IGIT

AL

ICO

NU

SA

INC

.N

o

TM

K12

–003

104/

18/2

012

8/20

/202

2W

UH

AN

UN

IVE

RS

AL

PE

RC

US

SIO

NN

o

41 CUSTOMS BULLETIN AND DECISIONS, VOL. 46, NO. 23, MAY 30, 2012C

BP

IPR

RE

CO

RD

AT

ION

—A

PR

IL20

12

Rec

ord

atio

nN

o.E

ffec

tive

Dat

e

Exp

irat

ion

Dat

e

Nam

eof

Cop

/Tm

k/T

nm

Ow

ner

Nam

eG

M

Res

tric

ted

TM

K12

–003

084/

18/2

012

5/23

/201

6IB

IKE

VE

LO

CO

MP

LL

CN

o

TM

K12

–003

134/

18/2

012

12/2

0/20

21S

TY

LE

WE

AR

TE

XT

ILE

CE

NT

ER

INC

.N

o

TM

K12

–003

374/

19/2

012

1/13

/201

7C

OS

PO

ST

UM

BL

EA

ND

DE

SIG

NP

BM

GR

OU

PN

o

TM

K12

–003

164/

18/2

012

3/30

/201

4D

ES

TIN

YK

EN

MA

RK

OP

TIC

AL

CO

MPA

NY

No

TM

K12

–003

194/

18/2

012

3/20

/202

2P

INE

GE

NO

LH

OR

PH

AG

RE

SE

AR

CH

MA

NA

GE

ME

NT

SA

No

TM

K12

–003

184/

18/2

012

9/4/

2021

GO

LIG

HT

GO

LIG

HT,

INC

.N

o

TM

K12

–003

114/

18/2

012

2/28

/202

2B

ER

NIN

G’S

CA

RIB

ICA

ND

DE

SIG

NG

US

TA

VB

ER

NIN

GG

MB

H&

CO

.KG

No

TM

K12

–003

154/

18/2

012

4/10

/202

2S

PC

WIT

HIN

AC

IRC

LE

SA

NPA

BL

OC

OM

ME

RC

IAL

CO

RP.

No

TM

K12

–003

174/

18/2

012

3/27

/202

2A

CC

LA

IML

IVE

GR

EA

TF

OO

DS

,L

LC

No

TM

K12

–002

974/

18/2

012

4/10

/202

2PA

RA

DIS

ES

HO

RE

SB

DS

RC

O,

INC

.N

o

TM

K12

–003

004/

18/2

012

11/1

8/20

17W

UH

AN

UN

IVE

RS

AL

PE

RC

US

SIO

NN

o

TM

K12

–002

984/

18/2

012

8/25

/202

1M

PAA

LO

GO

AN

DD

ES

IGN

MO

TIO

NP

ICT

UR

EA

SS

OC

IAT

ION

OF

AM

ER

ICA

,IN

C.

No

TM

K12

–003

224/

19/2

012

12/1

/201

9P

OW

ER

MA

TIC

ZIC

OU

SA

INC

.N

o

TM

K12

–003

814/

19/2

012

7/1/

2018

AIR

BL

AD

EP

EA

RIS

ON

,IN

C.

D/B

/AB

AN

DS

HO

PP

EN

o

TM

K12

–002

994/

18/2

012

3/26

/202

2PA

UA

RO

CK

GO

LD

SC

HM

IDT

VIN

EY

AR

DS

LL

CN

o

TM

K12

–004

174/

27/2

012

4/16

/202

2F

OC

US

EM

GT

EL

EE

MG

,L

LC

No

TM

K12

–004

044/

27/2

012

1/22

/201

8N

FN

IGH

TF

OR

CE

PR

EC

ISIO

NO

PT

ICS

AN

DD

ES

IGN

LIG

HT

FO

RC

EU

SA

,IN

C.

D/B

/AN

IGH

T-

FO

RC

EO

PT

ICS

INC

.

No

42 CUSTOMS BULLETIN AND DECISIONS, VOL. 46, NO. 23, MAY 30, 2012C

BP

IPR

RE

CO

RD

AT

ION

—A

PR

IL20

12

Rec

ord

atio

nN

o.E

ffec

tive

Dat

e

Exp

irat

ion

Dat

e

Nam

eof

Cop

/Tm

k/T

nm

Ow

ner

Nam

eG

M

Res

tric

ted

TM

K12

–004

054/

27/2

012

3/27

/202

2B

IN

OB

LE

BE

AU

TY

OF

AM

ER

ICA

,IN

C.

No

TM

K12

–003

204/

18/2

012

12/3

1/20

12W

UH

AN

UN

IVE

RS

AL

PE

RC

US

SIO

NN

o

TM

K12

–003

234/

19/2

012

3/26

/202

2P

OK

EM

ON

NIN

TE

ND

OO

FA

ME

RIC

AIN

C.

No

TM

K12

–003

214/

19/2

012

8/4/

2019

SK

YB

AL

LM

AU

lT

OY

S,

INC

.N

o

TM

K07

–013

954/

19/2

012

12/2

4/20

21G

20N

ISS

AN

JID

OS

HA

KA

BU

SH

IKI

KA

ISH

AN

o

TM

K12

–004

064/

27/2

012

8/21

/201

7A

VE

NG

ER

SM

AR

VE

LC

HA

RA

CT

ER

S,

INC

.N

o

TM

K12

–004

074/

27/2

012

4/3/

2022

DE

SIG

NIN

NO

VA

TIO

NF

IRS

T,IN

C.

No

TM

K12

–003

304/

19/2

012

6/28

/202

03M

3MC

OM

PAN

YN

o

TM

K12

–003

354/

19/2

012

11/2

2/20

21IP

LN

ISS

AN

JID

OS

HA

KA

BU

SH

IKI

KA

ISH

AN

o

TM

K12

–004

114/

27/2

012

4/3/

2022

TR

UE

SO

UR

CE

TR

UE

SO

UR

CE

HO

NE

YL

LC

No

TM

K12

–004

094/

27/2

012

9/20

/201

5D

ES

IGN

NIN

TE

ND

OO

FA

ME

RIC

AIN

C.

No

TM

K12

–004

134/

27/2

012

4/10

/202

2S

UP

ER

MA

RIO

LA

ND

NIN

TE

ND

OO

FA

ME

RIC

AIN

C.

No

TM

K12

–004

084/

27/2

012

7/12

/202

1D

ES

IGN

INN

OV

AT

ION

FIR

ST,

INC

.N

o

TM

K12

–004

104/

27/2

012

1/22

/201

8N

IGH

TF

OR

CE

(ST

YL

IZE

D)

LIG

HT

FO

RC

EU

SA

,IN

C.

No

CO

P12

–000

614/

27/2

012

4/27

/203

2O

WL

TO

WN

.B

NB

EN

TE

RP

RIS

ES

,IN

C.

No

TM

K12

–004

144/

27/2

012

4/3/

2022

EL

SA

BO

RD

EM

EX

ICO

EL

SA

BO

RD

EM

EX

ICO

,IN

C.

No

TM

K12

–004

164/

27/2

012

2/28

/202

2N

INT

EN

DO

3DS

NIN

TE

ND

OO

FA

ME

RIC

AIN

C.

No

TM

K12

–004

124/

27/2

012

4/17

/202

2L

EO

NA

RD

OV

AL

EN

TI

LE

ON

AR

DO

VA

LE

NT

IN

o

TM

K12

–004

154/

27/2

012

4/30

/202

2D

ES

IGN

PAR

FU

MS

CH

RIS

TIA

ND

IOR

,S

AN

o

43 CUSTOMS BULLETIN AND DECISIONS, VOL. 46, NO. 23, MAY 30, 2012C

BP

IPR

RE

CO

RD

AT

ION

—A

PR

IL20

12

Rec

ord

atio

nN

o.E

ffec

tive

Dat

e

Exp

irat

ion

Dat

e

Nam

eof

Cop

/Tm

k/T

nm

Ow

ner

Nam

eG

M

Res

tric

ted

CO

P12

–000

544/

19/2

012

4/19

/203

2PA

CK

AG

ING

DE

SIG

NS

FO

RN

INJA

BL

EN

DE

R.

EU

RO

-PR

OO

PE

RA

TIN

GL

LC

.N

o

TM

K12

–003

864/

27/2

012

4/3/

2022

I-IN

SE

CT

INN

OV

AT

ION

FIR

ST,

INC

.N

o

TM

K12

–003

874/

27/2

012

3/20

/202

2W

IIB

AL

AN

CE

BO

AR

DN

INT

EN

DO

OF

AM

ER

ICA

INC

.N

o

TM

K12

–003

884/

27/2

012

1/22

/202

2D

ES

IGN

AD

IDA

SIN

TE

RN

AT

ION

AL

MA

RK

ET

ING

B.V

.C

OR

PO

RA

TIO

NN

ET

HE

RL

AN

DS

No

TM

K12

–003

894/

27/2

012

11/9

/201

9A

VE

NG

ER

SM

AR

VE

LC

HA

RA

CT

ER

S,

INC

.N

o

CO

P12

–000

604/

27/2

012

4/27

/203

2M

AR

VE

LT

HE

AV

EN

GE

RS

MO

VIE

ST

YL

EG

UID

E

MV

LF

ILM

FIN

AN

CE

LL

C.

No

TM

K12

–003

914/

27/2

012

4/3/

2022

DE

SIG

N(H

EX

AG

ON

)IN

NO

VA

TIO

NF

IRS

T,IN

C.

No

TM

K12

–003

904/

27/2

012

4/3/

2022

LA

RV

AIN

NO

VA

TIO

NF

IRS

T,IN

C.

No

TM

K12

–004

024/

27/2

012

2/6/

2020

CE

LL

UV

ISC

AL

LE

RG

AN

,IN

CN

o

TM

K12

–003

924/

27/2

012

12/2

1/20

20S

UK

AR

NE

GR

UP

OV

IZS

.A.

DE

C.V

.(M

EX

ICO

CO

R-

PO

RA

TIO

N)

No

TM

K12

–003

994/

27/2

012

9/29

/201

8A

LP

HA

GA

NA

LL

ER

GA

N,

INC

No

TM

K12

–003

964/

27/2

012

4/10

/202

2G

AM

EB

OY

NIN

TE

ND

OO

FA

ME

RIC

AIN

C.

No

TM

K12

–003

944/

27/2

012

10/8

/201

2C

OR

ON

AD

O(A

ND

DE

SIG

N)

GR

UP

OB

IMB

OS

.A.B

.D

EC

.V.

(AM

EX

I-

CA

NC

OR

PO

RA

TIO

N)

No

TM

K12

–003

934/

27/2

012

12/2

3/20

17T

AZ

OR

AC

AL

LE

RG

AN

,IN

CN

o

44 CUSTOMS BULLETIN AND DECISIONS, VOL. 46, NO. 23, MAY 30, 2012C

BP

IPR

RE

CO

RD

AT

ION

—A

PR

IL20

12

Rec

ord

atio

nN

o.E

ffec

tive

Dat

e

Exp

irat

ion

Dat

e

Nam

eof

Cop

/Tm

k/T

nm

Ow

ner

Nam

eG

M

Res

tric

ted

TM

K12

–004

004/

27/2

012

4/10

/202

2W

IIS

PO

RT

SG

AM

EIN

CL

UD

ED

!JE

U

INC

LU

S!

JUE

GO

INC

LU

ÍDO

!N

IN-

TE

ND

O

NIN

TE

ND

OO

FA

ME

RIC

AIN

C.

No

TM

K12

–003

974/

27/2

012

1/2/

2020

AC

UL

AR

AL

LE

RG

AN

,IN

CN

o

TM

K12

–003

984/

27/2

012

10/2

2/20

22T

RID

EN

TN

EP

TU

NE

TE

CH

NO

LO

GY

GR

OU

PIN

C.

No

TM

K12

–004

294/

30/2

012

6/23

/201

8R

EF

RE

SH

TE

AR

SA

LL

ER

GA

N,

INC

No

TM

K12

–004

014/

27/2

012

10/2

/202

1B

UL

BA

SA

UR

NIN

TE

ND

OO

FA

ME

RIC

AIN

C.

No

TM

K12

–003

954/

27/2

012

10/2

/202

1IV

YS

AU

RN

INT

EN

DO

OF

AM

ER

ICA

INC

.N

o

Tota

lR

ecor

ds:

255

Dat

eas

of:

5/2/

2012

45 CUSTOMS BULLETIN AND DECISIONS, VOL. 46, NO. 23, MAY 30, 2012C

BP

IPR

RE

CO

RD

AT

ION

—A

PR

IL20

12