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HQ 965354

FEBRUARY 14, 2002

CLA-2 RR:CR:GC 965354 JAS



Tower Group International
6730 Middlebelt Road
Romulus, MI 48174-2039

RE: HQ 961431 Revoked; Declaration of Intended Use Under Actual Use Provision

Dear Sirs:

Pursuant to section 625(c), Tariff Act of 1930 (19 U.S.C. 1625(c)), as amended by section 623 of Title VI (Customs Modernization) of the North American Free Trade Agreement Implementation Act, Pub. L. 103-182, 107 Stat. 2057, 2186 (1993), notice of the proposed revocation of HQ 961431 was published on January 9, 2002, in the Customs Bulletin, Volume 36, Number 2. The only comment received in response to this notice raised an ancillary issue which has been independently addressed. As stated in the proposed notice of revocation, since HQ 961431 was a protest review decision, liquidation of the entries in the protest will be undisturbed.


The merchandise in HQ 961431, internal combustion engines for use with agricultural machinery, was entered under a provision in heading 8408, Harmonized Tariff Schedule of the United States (HTSUS), as other internal combustion engines. The entries were liquidated dutiable under this provision. On protest, a claim was made under heading 9817.00.60, HTSUS, as parts to be used in articles provided for in headings 8432, 8433, 8434 and 8436. The claim is based on the fact that the commercial invoice and bill of lading indicate that the engines were intended for use in agricultural implements. The record reflects that
the declaration of intended use required to support a claim under heading 9817 was not filed with the entry summary but rather, twenty one days thereafter.


Whether a declaration of intended use submitted after the consumption entry is filed is sufficient proof of required intent under an actual use provision.


The engines were entered under subheading 8408.90.90, HTSUS, as other compression-ignition internal combustion piston engines (diesel or semi-diesel engines), and the entries liquidated dutiable. The claim on protest is under heading 9817.00.60, HTSUS, as parts to be used in articles provided for in headings 8432, 8433, 8434 and 8436. This is a duty-free provision for parts of machinery, equipment and implements to be used for agricultural or horticultural purposes.

As indicated in HQ 961431, the stated use of the engines is in a legitimate agricultural or horticultural pursuit. However, there must be compliance with the actual use regulations in sections 10.131 through and including 10.139 of the Customs Regulations (19 CFR 10.131-10.139). Section 10.134, Customs Regulations, states, in relevant part, that the showing of intent as to actual use, such intent being manifested at the time of importation as required by section 10.133(a), shall be made by filing with the consumption entry a declaration of intended use or by entering the proper subheading of an HTS actual use provision on the entry form. The record in this case shows that a declaration of intent was filed twenty one days after the date of the entry summary.

HQ 961431 concluded that protestant’s failure to file the declaration required by section 10.134, Customs Regulations, with the entries is not fatal to the claim under heading 9817.00.60, HTSUS, because under section 10.112, Customs Regulations, the declaration of intended use may be filed at any time prior to liquidation of the entry or, if the entry was liquidated, before the liquidation becomes final. This is incorrect and no longer represents Customs position in the circumstances. It is clear from section 10.133 of the Customs Regulations that with respect to a claim under an actual use provision such use must be intended at the time of importation. It is likewise clear from section10.134 that one method of showing the required intent is by filing a declaration of intended use with the consumption entry or entries. Failure to file the required declaration with the entry or entries indicates noncompliance with section 10.133. This noncompliance is not curable under section 10.112 as this provision relates merely to the late filing of documents.


Failure to file a declaration of intended use under an actual use provision with the consumption entry of entries indicates noncompliance with section 10.133, Customs Regulations, and is not curable under section 10.112, Customs Regulations. In these circumstances, a claim under heading 9817.00.60, HTSUS, is not sustainable.


HQ 961431, dated December 1, 1998, is revoked. In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after its publication in the Customs Bulletin.


John Durant, Director
Commercial Rulings Division

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