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HQ 559297

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May 9, 1996

CLA-2 RR:TC:SM 559297 DEC

CATEGORY: CLASSIFICATION

TARIFF NO.: 9808.00.30

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 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 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

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See also:

• Tariff No.: 9808.00.30 - Materials certified to the Commissioner of Customs by authorized military procuring agencies to be emergency war material purchased abroad
• Tariff No.: 9808.00.80 - Materials certified by NASA to the Comm. of Customs to be imported to be launched into space by NASA, spare parts and support equipment