CON-2-07-RR:IT:EC 113861 CC
Port Director
U.S. Customs Service
135 High Street, Rm. 350
Hartford, CT 06103
RE: Application for further review of Protest No. 0401-96-100293; civil aircraft parts;
19 CFR § 10.183
Dear Sir:
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 consisted of a nose cowl, engine cover and engine parts. The date of entry for the subject merchandise was May 22, 1992. On June 9, 1992, a reject notice was sent to the importer because the merchandise was misclassified. A corrected entry was submitted on June 11, 1992, classifying the merchandise as dutiable aircraft engine parts. No certification that the goods were civil aircraft parts eligible for duty-free treatment was filed with the entry.
In addition, there was no blanket certificate on file with Customs.
A certification that the nose cowl was for use in civil aircraft was filed on June 26, 1992. Along with the certification, a request that the merchandise be liquidated duty-free pursuant to 19 U.S.C. § 1520(a)(4) was submitted by the protestant. That claim was denied on March 14, 1996. The subject merchandise was liquidated on March 22, 1996.
A protest was filed on June 12, 1996. The protestant protests that the subject merchandise was dutiable upon liquidation, rather than being considered civil aircraft parts eligible for duty-free treatment. In addition, the protestant contends that a claim that the goods were eligible for duty-free treatment was not made at the time of entry due to a mistake of fact, pursuant to U.S.C. § 1520(c)(1). The protestant submitted with the protest a certification, dated May 22, 1992, and not previously submitted due to an alleged mistake of fact, that all of the subject goods were civil aircraft parts.
ISSUE:
Whether the subject merchandise is eligible for duty-free treatment as civil aircraft parts.
LAW AND ANALYSIS:
Pursuant to the Civil Aircraft Agreement, General Note 6 of the Harmonized Tariff Schedule of the United States (HTSUS) provides for the duty-free treatment of civil aircraft parts. General Note 6 was amended by section 12 of the Miscellaneous Trade and Technical Corrections Act of 1996, Pub. L. 104-295, 110 Stat. 3514 (October 11, 1996). Since the amended law became effective after the subject entry was made, the amended law does not apply to that entry.
19 CFR § 10.183 is the regulation promulgated pursuant to General Note 6, HTSUS, providing for the duty-free entry of civil aircraft parts. 19 CFR § 10.183(c)(2) provided at the time of entry, in pertinent part, the following:
At the time of filing the entry summary, the importer of civil aircraft parts shall submit a certificate [attesting to the eligibility as civil aircraft parts]... Failure to provide the certification at the time of filing the entry summary or to have an approved blanket certification on file with the director of the port where the entry summary is filed shall result in a dutiable entry.
There have been several recent court cases concerning the requirement of 19 CFR § 10.183(c) that the certification must be provided at the time of entry in order for civil aircraft parts to be eligible for duty-free treatment. In those cases the courts have found that the failure to provide certification at the time of entry will not automatically preclude an importer from receiving duty-free treatment of civil aircraft parts. An importer may receive duty-free treatment for civil aircraft parts pursuant to 19 U.S.C. § 1520(c), or pursuant to 19 CFR § 10.112, by meeting the criteria for late filing of duty-free entry documentation. See Innotech Aviation, Ltd. v. United States, 992 F. Supp. 411 (CIT 1997), Gulfstream Aerospace Corp. v. United States, 981 F. Supp. 654 (CIT 1997), and Avial of Texas, Inc. v. United States, 18 CIT 727, 861 F. Supp. 100 (1994), aff’d 70 F.3d 1248 (1995).
In Gulfstream Aerospace Corp., supra, the court stated that in accordance with 19 CFR § 10.112, certification for civil aircraft parts may be filed anytime prior to liquidation of the entry, or if the entry was liquidated, before the liquidation becomes final. The court reasoned that since a properly and timely filed protest stays the finality of liquidation, a certification for civil aircraft parts filed with the protest is filed before liquidation becomes final and would meet the requirements of 19 CFR § 10.112.
In this case, one certification, for the nose cowl, was filed on June 26, 1992, just less than one month after the date of entry. The certification for the remainder of the subject merchandise was filed with the protest. Consequently, based on Gulfstream Aerospace Corp., supra, the requirement for submitting certification for civil aircraft parts prior to liquidation has been met, and the subject merchandise is eligible for duty-free treatment as civil aircraft parts, assuming the certifications submitted are valid.
19 CFR § 10.183(d) provided, at the time of entry, what information is required in a certification for civil aircraft parts. For entry by entry certification, the major requirements are that it is stated that the parts identified in the entry summary have been imported for use in civil aircraft, and such parts have been approved for use in civil aircraft by the Federal Aviation Administration (FAA) or the approval is recognized by the FAA as an acceptable substitute for FAA approval. Both of the certifications for the subject entries contain the required information. Consequently, such certifications are valid for meeting the requirements of 19 CFR § 10.183(d).
HOLDING:
The subject merchandise is eligible for duty-free treatment as civil aircraft parts. 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