HQ H256420 November 16, 2015 DRA-4 OT:RR:CTF:ER HQ 256420 MES Koichi Nosaka, Vice President Kyocera Precision Tools Inc. 3565 Cadillac Ave. Costa Mesa, CA 92626 Dear Mr. Nosaka: This is in reference to your request concerning Kyocera Precision Tools, Inc., (“Kyocera Precision”), being the drawback successor to Kyocera Tycom Corporation, (“Kyocera Tycom”), pursuant to 19 U.S.C. §1313(s). Our decision follows. FACTS: In a letter dated June 30, 2014, Kyocera Precision requested a ruling identifying Kyocera Precision as the drawback successor to Kyocera Tycom. On April 1, 2014, Kyocera Tycom merged into Kyocera Precision. As support, Kyocera Precision provided a signed copy of the certificate of merger stating that, effective April 1, 2014, Kyocera Precision possessed all of Kyocera Tycom’s assets, rights, powers and property. Additionally, Kyocera Precision provided a certificate from the Secretary of State of Delaware, dated April 1, 2014, certifying that the certificate of merger is a true and correct copy. Further, Kyocera Precision provided a document titled “Agreement and Plan of Merger” stating that, on the effective date, the separate existence of Kyocera Tycom ceased and Kyocera Precision, as the surviving corporation, possessed all assets rights, powers and property as constituted immediately prior to the effective date, in addition to being subject to all debts, liabilities, and obligations. Kyocera Precision made further certifications in its June 30, 2014, letter, which are discussed below. ISSUE: Whether Kyocera Precision has established itself as the drawback successor to Kyocera Tycom, pursuant to 19 U.S.C. §1313(s). LAW AND ANALYSIS: Section 313 of the Tariff Act, as amended (19 U.S.C. §1313(s)(2)), provides that for purposes of §1313(j)(2), a drawback successor may designate: (1) imported merchandise that the predecessor, before the date of succession, imported; or (2) imported merchandise, commercially interchangeable merchandise, or any combination of imported and commercially interchangeable merchandise for which the predecessor received, before the date of succession, from the person who imported and paid any duty due on the imported merchandise a certificate of delivery transferring to the predecessor such merchandise; as the basis for drawback on merchandise possessed by the drawback successor after the date of succession. A “drawback successor” is an entity to which another entity (referred to as the “predecessor”) has transferred by written agreement, merger, or corporate resolution all or substantially all of the rights, privileges, immunities, powers, duties, and liabilities of the predecessor; or the assets and other business interests of a division, plant, or other business unit of such predecessor, but only if in such transfer the value of the transferred realty, personalty, and intangibles (other than drawback rights, inchoate or otherwise) exceeds the value of all transferred drawback rights, inchoate or otherwise. 19 U.S.C. § 1313(s)(3).  In order to claim drawback under 19 U.S.C. §1313(s), there is the requirement that either the predecessor or the drawback successor (who shall also certify that it has the predecessor's records) certifies that the transferred merchandise was not and will not be claimed by the predecessor, and the predecessor did not and will not issue any certificate to any other person that would enable that person to claim drawback. The implementing regulations require that the predecessor or successor must certify in an attachment to the drawback claim that the successor is in possession of the predecessor's records that are necessary to establish the right to drawback under the law and regulations with respect to the imported and/or commercially interchangeable merchandise and the predecessor or successor must certify in an attachment to the drawback claim, that the predecessor has not and will not designate, nor enable any other person to designate, the imported and/or commercially interchangeable merchandise as the basis for drawback. See 19 CFR § 191.32(f)(3)(i) and (ii). Further, the written agreement, merger, or corporate resolution, and the records and evidence, must be retained by the appropriate entity for three years from the date of payment of the related claim and are subject to review by CBP upon request. See 19 CFR § 191.32(f)(3)(iv).  The certificate of merger provided indicates that Kyocera Tycom merged with and into Kyocera Precision with an effective date of April 1, 2014. The certificate from the Secretary of State of Delaware, dated April 1, 2014, certified that the certificate of merger was a true and correct copy. Further, the merger agreement stated that the separate existence of Kyocera Tycom ceased and that Kyocera Precision, as the surviving corporation, possessed all assets rights, powers and property as constituted immediately prior to the effective date, in addition to being subject to all debts, liabilities, and obligations. Therefore, based upon an analysis of the merger documents, we find that Kyocera Precision is the drawback successor to Kyocera Tycom, pursuant to 19 U.S.C. § 1313(s)(3). In its letter dated June 30, 2014, Kyocera Precision certified that: (1) it is in possession of Kyocera Tycom’s records that are necessary to establish the right to drawback under the law and regulations with respect to the imported and/or commercially interchangeable merchandise; (2) Kyocera Tycom has not and will not designate, nor enable any other person to designate, the imported and/or commercially interchangeable merchandise as the basis for drawback; (3) the transferred merchandise was not and will not be claimed by the predecessor; and (4) the predecessor did not and will not issue any certificate to any other person that would enable that person to claim drawback. Accordingly, Kyocera Precision has made the required certifications per 19 CFR § 191.32(f)(3) and 19 U.S.C. § 1313(s)(4). Please be aware that this response does not address whether the exported merchandise is commercially interchangeable with the designated imports under 19 U.S.C. § 1313(j)(2). That determination would need to be made before the ultimate approval of any drawback claim under 19 U.S.C. §1313(j)(2). Additionally, please note that Kyocera Precision must attach the certifications contained in 19 CFR § 191.32 (f)(3)(i) and (ii) to each drawback claim filed involving the subject merchandise. HOLDING:Kyocera Precision has proven its right of successorship, pursuant to 19 U.S.C. §1313(s), to designate merchandise which was in fact imported by predecessor Kyocera Tycom. However, before drawback will be paid under 19 U.S.C. §1313(j)(2), Kyocera Precision will need to prove the commercial interchangeability of its export with the designated imports. Please note that 19 CFR § 177.9(b)(1) provides that “[e]ach ruling letter is issued on the assumption that all of the information furnished in connection with the ruling request and incorporated in the ruling letter, either directly, by reference, or by implication, is accurate and complete in every material respect.” Sincerely, Carrie L. Owens, Chief Entry Process and Duty Refunds Branch