CLA-2 RR:TC:SM 559297 DEC
Port Director of Customs
U.S. Customs Service
P.O. Box 619050
Dallas - Fort Worth Airport, Texas 75261
RE: Protest No. 5501-94-100143; HTSUS 9808.00.30; 19 CFR
10.102(b);
emergency war materials
Dear Sir:
This is in reference to the above-referenced Protest and
Application for Further Review filed by Darrell J. Sekin on
behalf of Chelton, Incorporated (Chelton), which concerns whether
certain articles are properly classified pursuant to subheading
9808.00.30, Harmonized Tariff Schedule of the United States
(HTSUS). The following is our decision regarding this protest.
FACTS:
The record reflects that Chelton made eighteen entries from
August, 1992, through April, 1993 (see list of entries below),
seeking a duty exemption under subheading 9808.00.30, HTSUS, for
various military and civil aircraft parts imported from Great
Britain. The entries were liquidated on February 25, 1994, under
their appropriate HTSUS subheadings based on the documentation
that the importer had submitted to Customs. Your office allowed
the importer between ten months to one and one-half years to
provide the necessary documentation to obtain duty-free treatment
under subheading 9808.00.30, HTSUS, for the eighteen entries that
are the subject of this Protest. The Customs Protest and Summons
Information Report notes that the documentation is required by
section 10.102(b), Customs Regulations (19 CFR 10.102(b)). This
protest was timely filed May 24, 1994, and covered the entries
described below in the order they appear in Exhibit 2 which your
office prepared for the Customs Protest and Summons Information
Report. Your recommended basis for granting or denying the
particular claim for classification pursuant to 9808.00.30,
HTSUS, is also provided below.
ENTRY NUMBER
1. 409-01724423 Contract number on invoice #46546 and
line 1 of the
Customs Form (CF) 7501 is listed as #DAAJ09-91-C-0122.
Duty-free certificate indicates contract
#DAAJ09-93-C-0122.
Duty-free treatment under subheading
9808.00.30, HTSUS,
was denied with respect to line 1 of this
entry by your office.
2. 409-01734521 Line 1 of the CF 7501 and invoice #46990
indicate duty-free
certificate #DAAB07-92-C-R889. The duty-free
certificate provided indicates #DAAB07-92-C-R689.
Duty-free treatment under subheading
9808.00.30,
HTSUS, was denied with respect to line 1 of
this entry by
your office.
3. 409-01735957 Line 3 of the CF 7501 and invoice #47044
indicate contract
#DAAB07-92-C-R889. The duty-free certificate
indicates contract #DAAB07-92-C-R689. Duty-free
treatment under subheading 9808.00.30, HTSUS,
was
denied with respect to line 3 of this entry
by your office.
4. 409-01680732 Line 1 of the CF 7501 and invoice #45280
indicate contract
#N00383-91-C-O135. The duty-free certificate
indicates contract #N00383-91-C-U135. Duty-free
treatment under subheading 9808.00.30, HTSUS,
was
denied with respect to line 1 of this entry
by your office.
5. 409-01685012 Line 1 of the CF 7501 and invoice #45402
indicate contract
#N00383-91-C-O135. The duty-free certificate
indicates contract #N00383-91-C-U135. Duty-free treatment under
subheading 9808.00.30, HTSUS, was denied with
respect to
line 1 of this entry by your office. A duty-free certificate was
provided for contract #DAAJ09-89-C-A049 (line
2 of the CF
7501). Approval was recommended with respect
to line 2 of
the CF 7501 by your office.
6. 409-01744793 Line 3 of the CF 7501 and invoice #47338
indicate Contract
#DAAJ09-88-C-A004. The duty-free certificate
indicates
contract #DAAJ09-88-C-A003. Line 5 of the CF
7501 and
invoice 47341 indicate contract #DAAB07-91-C-0093. The
duty-free certificate indicates contract
#DAAJ09-91-C-0932.
Duty-free treatment under subheading
9808.00.30, HTSUS,
was denied with respect to lines 3 and 5 of
this entry by
your office.
7. 409-01736039 You indicated in your correspondence
that a duty-free
certificate was not provided for contract
#N00019-91-C-
0095 (line 1 of the CF 7501). Duty-free
treatment under
subheading 9808.00.30, HTSUS, was denied with
respect to
line 1 of this entry by your office.
8. 409-01738142 A duty-free certificate was not provided
for contract
#F04606-92-C-0377 (line 1 of the CF 7501) and
#F33600-
88-G-5101-0952 (line 2 of the CF 7501).
Duty-free
treatment under subheading 9808.00.30, HTSUS,
was
denied with respect to lines 1 and 2 of this
entry by your
office.
9. 409-01729752 A duty-free certificate was not provided
for contracts
#N00383-93-P-R228 (line 1 of CF 7501),
DAAB07-92-C-
R889 (line 3 of the CF 7501), and #N00383-90-C-0033 (line
4 of the CF 7501). Duty-free treatment under
subheading
9808.00.30, HTSUS, was denied with respect to
lines 1, 3,
and 4 of this entry by your office.
10. 409-01705083 A duty-free certificate was not provided
for contracts
#DAAJ09-92-C-A049 (line 1 of the CF 7501) and
#N00383-
92-C-8232 (line 2 of the CF 7501). Duty-free
treatment
under subheading 9808.00.30, HTSUS, was
denied with
respect to lines 1 and 2 of this entry by
your office.
11. 409-01689592 A duty-free certificate was not provided
for contract
#N00019-85-C-0145 (line 5 of the CF 7501).
Duty-free
treatment under subheading 9808.00.30, HTSUS,
was
denied with respect to line 5 of this entry
by your office.
You indicated that Chelton provided certificates from the
proper authority for the remaining seven entries and you
recommended that the protest be granted with respect to these
seven entries.
12. 409-01702957
13. 409-01753877
14. 409-01701728
15. 409-01693321
16. 409-01743605
17. 409-01704102
18. 409-01699195
ISSUE:
Are the articles referenced above entitled to duty-free
entry under subheading 9808.00.30, HTSUS?
LAW AND ANALYSIS:
Subheading 9808.00.30, HTSUS, provides for the duty-free
treatment of articles for military departments that are certified
to the Commissioner of Customs by the authorized procuring
agencies to be emergency war materials purchased abroad. This
provision is applicable only when a certificate executed by a
duly authorized officer or official of the applicable military
department is presented in accordance with section 10.102,
Customs Regulations (19 CFR 10.102).
Section 10.102(b), Customs Regulations (19 CFR 10.102(b)),
provides that:
[t]he certificates may be printed, stamped, or
typewritten on
the Custom entry or withdrawal form, Customs Form 7501
or 7506, or on a separate paper attached to the entry
or
withdrawal form filed by the Government agency or
office,
provided the certification is clearly and unmistakably
identified with the articles covered by the entry or
withdrawal.
Line 1 of the CF 7501 of entry number 409-01724423 was
denied duty-free treatment under subheading 9808.00.30, HTSUS, by
your office because the contract number on the applicable invoice
(invoice #46546) and line 1 of the CF 7501 is listed
as #DAAJ09-91-C-0122. However, the duty-free certificate issued
by the Defense Logistic Agency indicates contract #DAAJ09-93-C-0122. Customs strictly enforces the requirement in 19 CFR
10.102(b) that the certification executed by an authorized
officer or official of the applicable government procuring agency
must clearly identify specific war materials. Your office
properly denied duty-free treatment under subheading 9808.00.30,
HTSUS, for the articles covered by line 1 of this entry because
the importer failed to submit a certification unmistakably
identifying the imported articles.
Similarly, the documentary evidence filed with Customs with
respect to line 1 of CF 7501 for entry number 409-01734521
(invoice #46990) and line 3 of CF 7501 for entry number 409-01735957 (invoice #47044) includes a duty-free certificate for
merchandise covered under contract #DAAB07-92-C-R689. However,
the invoices submitted in connection with these entries make
reference to contract #DAAB07-92-C-R889. Your office properly
denied duty-free treatment under subheading 9808.00.30, HTSUS,
for the articles covered under the above-referenced lines of
these entries because the importer failed to submit a
certification unmistakably identifying the imported articles.
The documentation for line 1 of CF 7501 for entry number
409-01680732 (invoice #45280) and for line 1 of CF 7501 for entry
number 409-01685012 includes a duty-free certificate for
merchandise covered under contract #N00383-91-C-U135. However,
the invoice for this entry makes reference to contract #N00383-91-C-O135. Your office properly denied the duty-free treatment
under subheading 9808.00.30, HTSUS, for the articles covered by
these lines of the above-referenced entries because the importer
failed to submit a certification unmistakably identifying the
imported articles. We also note that a duty-free certificate was
provided for contract #DAAJ09-89-C-A049 (line 2 of CF 7501) and
for contract #DAAJ09-88-C-A003 (line 3 of CF 7501) for entry
number 409-01685012. Accordingly, the Protest should be granted
with respect to the merchandise described on lines 2 and 3 of
this entry.
Line 3 of CF 7501 and invoice #47338 that correspond to
entry number 409-01744793 refer to contract #DAAJ09-88-C-A004.
However, the duty-free certificate indicates contract #DAAJ09-88-C-A003. Similarly, line 5 of CF 7501 and invoice #47341 indicate
contract #DAAB07-91-C-0093, but the duty-free certificate
indicates contract #DAAJ09-91-C-0932. Your office properly
denied the duty-free treatment
under subheading 9808.00.30, HTSUS, for the articles covered by
these lines of the above-referenced entry because the importer
failed to submit a certification unmistakably identifying the
imported articles.
Based upon our review of entry number 409-01736039, we note
that line 1 of CF 7501 which you denied classification under
9808.00.30, HTSUS, refers to contract #N00146-92-M-RW24. Line 2
of CF 7501 refers to contract #N00019-91-C-0095. In your
correspondence with our office, you indicated that no duty-free
certificate was provided for contract #N00019-91-C-0095.
However, as the record contains a duty-free certificate for
contract #N00019-91-C-0095, classification under the duty-free
provision (9808.00.30, HTSUS) is proper for the articles
pertaining to line 2 of CF 7501 and thus, the protest is granted
with respect to merchandise described on line 2. On the other
hand, since a duty-free certificate was not provided for contract
#N00146-92-M-RW24, your office properly denied the duty-free
treatment under subheading 9808.00.30, HTSUS, for the articles
covered by line 1 of this entry because the importer failed to
submit a certification unmistakably identifying the imported
articles. We concur with your findings with respect to the
dutiability of the balance of this entry.
Our review of the record with respect to entry number 409-01738142 reveals the fact that a duty-free certificate from the
appropriate agency was not provided for contract #F04606-92-C-0377 and #F33600-88-G-5101-0952. Customs may not authorize
classification under subheading 9808.00.30, HTSUS, absent the
properly authorized documentation. Accordingly, your office
properly denied duty-free treatment under subheading 9808.00.30,
HTSUS, for the articles covered by lines 1 and 2 of this entry
because the importer failed to submit a certification
unmistakably identifying the imported articles.
Similarly, the record with respect to entry number 409-01729752 reveals the fact that a duty-free certificate from the
appropriate agency was not provided for the following contracts
which were referred to in the invoices: #N00383-93-P-R228 (line 1
of CF 7501), #DAAB07-92-C-R889 (line 3 of CF 7501), and #N00383-90-C-0033 (line 4 of CF 7501). The documentation that was
submitted with this entry contains duty-free certifications for
the following contracts numbered #N00019-91-C-001 and #N00383-92-C-8232, neither of which is identified in the invoices concerning
the merchandise in this entry. No duty-free certificate was
provided for contract #N00383-93-P-R228, #DAAB07-92-C-R889, or
#N00383-90-C-0033. Accordingly, your office properly denied
duty-free treatment under subheading 9808.00.30, HTSUS, for the
articles covered by the above-referenced lines of this entry
because the importer failed to submit a certification
unmistakably identifying the imported articles.
Our review of the record with respect to line 1 of CF 7501
of entry number 409-01705083 reveals the fact that a duty-free
certificate from the appropriate agency was
not provided for contract #DAAJ09-92-C-A049. Customs may not
authorize classification under subheading 9808.00.30, HTSUS,
absent the properly authorized documentation. Accordingly, your
office properly denied duty-free treatment with respect to the
articles covered in line 1 of CF 7501 under subheading
9808.00.30, HTSUS, for the articles covered by this contract
number because the importer failed to submit a certification
unmistakably identifying the imported articles. However,
articles imported under contract #N00383-92-C-8232 (referred to
on line 2 of CF 7501) are properly classified under subheading
9808.00.80, HTSUS, since the proper certification for these
articles has been submitted. Accordingly, the protest should be
granted with respect to the merchandise covered by line 2 of this
entry. We, however, concur with your findings with respect to
the dutiability of the balance of this entry.
Our review of the record with respect to line 5 of CF 7501
of entry number 409-01689592 reveals the fact that a duty-free
certificate from the appropriate agency was not provided for
contract #N00019-85-C-0145. Instead, a certification for duty-free entry was submitted for contract #N00019-89-C-0153. Customs
may not authorize classification under subheading 9808.00.30,
HTSUS, absent the properly authorized documentation.
Accordingly, your office properly denied duty-free treatment
under subheading 9808.00.30, HTSUS, for the articles covered by
line 5 of this entry with respect to the parts for contract
#N00019-85-C-0145 because the importer failed to submit a
certification unmistakably identifying the imported articles.
Chelton provided certificates from the proper authority for
the following six entries, and your office recommends approval of
the protest to allow duty-free treatment under subheading
9808.00.30, HTSUS, for the articles covered by these entries.
Entry Number - 409-01702957
Entry Number - 409-01701728
Entry Number - 409-01693321
Entry Number - 409-01743605
Entry Number - 409-01704102
Entry Number - 409-01699195
Accordingly, the protest should be allowed for the above six
entries.
With respect to entry number 409-01753877 which specifies,
in part, for contract #F34601-90-G-001 on line 1 of CF 7501, the
duty-free certificate provided refers to contract #F34601-90-C-001. Accordingly, the protest should be denied with respect to
the articles covered under contract #F34601-90-G-001.
HOLDING:
To the extent that the importer has been unable to submit to
Customs the proper certifications for duty-free treatment that
reference the identical contract numbers that correspond to the
invoices and the corresponding CF 7501's, we find that the
certificate does not "clearly and unmistakably" identify all of
the articles covered by this protest. Accordingly, this Protest
is granted in part and denied in part, as discussed above.
In accordance with Section 3A(11)(b) of Customs Directive
099 3550-065, dated August 4, 1993, Subject: Revised Protest
Directive, this decision should be mailed by your office to the
protestant no later than 60 days from the date of this letter.
Any
reliquidation of the entry in accordance with the decision must
be accomplished prior to the mailing of the decision. Sixty days
from the date of the decision the Office of Regulations and
Rulings will take steps to make the decision available to customs
personnel via the Customs Rulings Module in ACS and the public
via the Diskette Subscription Service, Freedom of Information Act
and other public access channels.
Sincerely,
John Durant
Director, Tariff Classification
Appeals Division