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HQ 557940




July 7, 1994

CLA-2 CO:R:C:S 557940 DLD

CATEGORY: CLASSIFICATION

District Director of Customs
P.O. Box 4688
Portland, ME 04112

RE: Decision on Application for Further Review of Protest No. 0101-91-100119

Dear Sir:

This protest was filed against your decision to liquidate as dutiable the entry for a low pressure chemical vapor deposition system imported by the University of Illinois at Chicago.

FACTS:

On July 31, 1991, the University of Illinois at Chicago imported a low pressure chemical vapor deposition system. On August 9, 1991, it was entered at the port of Houlton, Maine under consumption entry number 744-2696070-9, duty paid.

The University of Illinois at Chicago submitted an application for duty-free entry under subheading 9810.00.60, HTSUS, for the instrument to Customs Headquarters on September 16, 1991. The application was approved by the Customs Service on November 14, 1991, stamped "Accepted for Transmittal to the Department of Commerce" and assigned Docket Number 91-166. A copy was sent to the applicant and another copy to the Department of Commerce for their review and determination of eligibility for duty-free treatment based on their criteria pursuant to 15 CFR 301.
The entry was liquidated as dutiable on November 29, 1991. A protest with a request for further review was timely filed on December 30, 1991, which claimed that the Department of the Treasury (i.e., Customs) approval of the application of November 14, 1991, under Docket Number 91-166, entitled the University of Illinois at Chicago to duty-free treatment under subheading 9810.00.60, HTSUS.

On July 1, 1992, the Statutory Import Programs Staff of the Department of Commerce denied the application for duty-free entry under subheading 9810.00.60, HTSUS, for the low pressure chemical vapor system (see Federal Register of July 1, 1992, p.29290).

Because of the protestant's request for further review, the Portland, Maine Customs District office forwarded the protest to Customs Headquarters on May 26, 1994, pursuant to 19 CFR 174.23, after a preliminary review indicated that the protest would be denied in whole or in part by the District and the protest alleged facts which were not considered at the time of the original ruling, namely, the aforementioned Customs Headquarters approval of duty-free entry (19 CFR 174.24(c)). This letter is Headquarter's response to the application for further review of the protest.

LAW AND ANALYSIS:

The protest claims that the "decision from the Dept. of Treasury [allows] this merchandise to be entered duty free under TSUS 9810.00.60." The Portland, Maine, Customs Protest and Summons Information Report" of May 17, 1994, correctly analyzes the situation: "The Department of Commerce denied the application for duty free status via notice in the Federal Register Vol 87, [sic 57], No 127. Protestant is erroneously using Customs acceptance of the application...as approval of the duty free claim."

The procedures for applying for duty-free entry of otherwise dutiable scientific instruments and apparatus under subheading 9810.00.60, HTSUS, are to be found in 15 CFR 301. These joint regulations of the Department of Commerce and Department of the Treasury are the sole and complete authority for the duty-free entry of scientific instruments under subheading 9810.00.60, HTSUS. They can be found in CD 099 3550-060, dated September 16, 1992, together with an explication.

Briefly stated, the applicant applies for duty-free entry to Customs Headquarters on form ITA-338P. If Customs Headquarters approves the application, a copy is forwarded to the Department of Commerce for their determination. Unless both agencies approve the application, the importation remains dutiable (15 CFR 301.4(b) and 15 CFR 301.5(f)). In the present instance, Customs approved the application but Commerce denied it. The Commerce Department is under no statutory obligation to reconsider this application.

HOLDING:

Inasmuch as the application did not obtain the approval of both the Department of Commerce and the Customs Service, the entry for the low pressure chemical vapor deposition system is not entitled to duty-free treatment under subheading 9810.00.60, HTSUS. Therefore, the protest is denied in full.

In accordance with Section 3A(ll)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, a copy of this decision should be attached to the Customs Form 19 and 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 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, Lexis, Freedom of Information Act and other public access channels.

Sincerely,

John Durant, Director
Commercial Rulings Division


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