Application for further review of Protest No. 1303-98-100011; 9808.00.30, HTSUS; purchases of emergency war materials by U.S. military departments; untimely certification; 19 CFR § 10.112.

HQ 114293 September 29, 1998 CON-12-03-RR:IT:EC 114293 CC CATEGORY: Entry Port Director U.S. Customs Service 40 S. Gay Street Baltimore, MD 21202 RE: Application for further review of Protest No. 1303-98-100011; 9808.00.30, HTSUS; purchases of emergency war materials by U.S. military departments; untimely certification; 19 CFR § 10.112. Dear Madam: The above-referenced protest was forwarded to this office for further review. We have considered the facts and issues raised, and our decision follows. FACTS: The subject merchandise, consisting of a ship propulsion unit, was entered by the protestant on January 22, 1997, under subheading 9808.00.30 of the Harmonized Tariff Schedule of the United States (HTSUS), which provides duty-free treatment of articles for military departments, of which the materials must be certified to the Commissioner of Customs by the authorized procuring agencies to be emergency war materials purchased abroad. At the time of entry, the required certification for duty-free treatment under subheading 9808.00.30, HTSUS, was not provided. When the required certificate was not provided within 6 months of the date of entry, Customs issued the protestant a Notice of Action (Customs Form 29), rate advancing the merchandise at 0.8 percent ad valorem under subheading 8431.49.1090, HTSUS. The entry was liquidated under that subheading on November 28, 1997. The protestant filed the protest on February 5, 1998, providing the required certification along with the protest. ISSUE:  Whether merchandise is eligible for duty-free treatment under subheading 9808.00.30, HTSUS, when the required certificate for classification under that subheading is provided at the time a protest is filed. LAW AND ANALYSIS: Initially, we note that the protest was timely filed pursuant to 19 U.S.C. § 1514(c). Section 10.112 of the Customs Regulations (19 CFR § 10.112) states, in pertinent part, the following: Whenever a free entry or a reduced duty document, form, or statement required to be filed in connection with the entry is not filed at the time of the entry or within the period for which a bond was filed for its production, but failure to file it was not due to willful negligence or fraudulent intent, such document, form, or statement may be filed at any time prior to liquidation of the entry or, if the entry was liquidated, before the liquidation becomes final. In Headquarters Ruling (HQ) 559609, dated October 3, 1996, copy enclosed, we ruled on essentially the same factual situation and the same issue that are present in this case. We found that in application of 19 CFR § 10.112 and in the absence of a specific showing of willful negligence or fraudulent intent, certifications necessary to support a claim for duty-free treatment may be submitted where a timely protest was filed and the submission of the certificates under subheading 9808.00.30, HTSUS, occurs before the liquidation of the underlying entries becomes final. In that case the certificates were filed after the protest was filed. In this protest, as in HQ 559609, we find no specific showing of willful negligence or fraudulent intent concerning submission of the certificate. Also, the certificate was filed with the protest, before liquidation became final. Consequently, in application of 19 CFR § 10.112 and based on HQ 559609, we find that the certificate filed with the protest is sufficient to support a claim for duty-free treatment under subheading 9808.00.30, HTSUS. HOLDING: The subject merchandise is eligible for duty-free treatment under subheading 9808.00.30, HTSUS, when the required certificate for classification under that subheading is provided at the time a protest is filed. Accordingly, the protest is granted. 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 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, Jerry Laderberg Chief Entry Procedures and Carriers Branch Enclosure