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HQ 562318




August 27, 2002

MAR-2-05 RR:IA 562318 RFC

CATEGORY: CLASSIFICATION

Tariff No. 9801.00.8500

Area Port Director of Customs
U.S. Customs Service
9901 Pacific Highway
Blaine, WA 98230

RE: Protest and Application for Further Review No. 3004-01-50004

Dear Sir or Madam:

This is in reference to a Protest and Application for Further Review (number 3004-01-50004) filed by Bombardier Inc./Canadair, contesting the denial of a claim under subheading 9801.00.8500 of the Harmonized Tariff Schedule of the United States (HTSUS) for duty free treatment.

FACTS:

The importer of record is Bombardier Inc-Canadair, Montreal, Canada. The consignee is ATT Metrology Services, Inc., Richmond, Washington. The exporter of the merchandise to the United States is Bombardier Aerospace, Montreal, Quebec, Canada.

The merchandise consists of laser tracker systems. ATT Metrology had a contract with Bombardier Aerospace to supply laser tracker systems and associated equipment to Bombardier Aerospace on a temporary basis for use in the fabrication, assembly and inspection of the tooling made for its commercial and business airplane programs. Upon completion of the agreement, the laser tracker systems were returned to ATT Metrology in the United States. ATT Metrology may not necessarily be the original importer of some of the equipment and has acquired some of the equipment domestically.

The merchandise was imported and entered on October 4, 2001. The merchandise was liquidated on August 17, 2001, under various HTSUS subheadings.

On October 4, 2000, a protest was filed against the rate of duty. The protest contends that all the merchandise should have been liquidated under subheading 9801.00.8500. In the instant case, the port disagrees with classification in subheading 9801.00.8500 because it believes that in order to receive the benefits of that subheading “the equipment should be utilized by the owner of a tool of the trade and not leased to a Canadian company for use by them.”

The protest was filed in a timely manner within ninety days from the date of liquidation.

ISSUES:

Whether the merchandise that is the subject of this protest is entitled to duty free treatment under HTSUS subheading 9801.00.8500.

LAW AND ANALYSIS:

HTSUS subheading 9801.00.8500 provides as follows:

Professional books, implements, instruments, and tools of trade, occupation, or employment, when returned to the United States after having been exported for use temporarily abroad, if imported by or for the account of the person who exported such items.

HTSUS Subheading 9801.00.8500

In order to receive the preferential tariff treatment provided for under subheading 9801.00.8500, the plain language of that provision only requires that the merchandise (1) be exported for temporary use abroad and (2) be imported (after being exported) by or for the account of the person who originally exported the merchandise. There is no requirement that the merchandise be used abroad by the person who exported it.

In the instant case, ATT Metrology exported the merchandise under consideration to Bombardier Aerospace in Canada for temporary use. After completion of this temporary use in Canada, Bombardier Aerospace exported the merchandise back to the United States and imported it by or for the account of ATT Metrology—the company that originally exported it. Accordingly, the merchandise in this transaction has satisfied the requirements of HTSUS subheading 9801.00.8500.

HOLDING:

The merchandise in the above-mentioned transaction has satisfied the requirements of HTSUS subheading 9801.00.9500. Accordingly, the protest should be granted.

In accordance with section 3 A (11) (b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject Revised Protest Directive, you are to mail this decision, together with Customs Form 19, to the protestant no later than sixty (60) days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.

Sixty (60) days from the date of this decision, the Office of Regulations and Rulings will make the decision available to U.S. Customs Service personnel, and to the public on the U.S. Custom Service web site (ww.customs.gov), by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Acting Director
Commercial Rulings Division

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