CLA-2 R:C:M 957494 JAS
District Director of Customs
101 E. Main Street
Norfolk, VA 23510
RE: PRD 1401-94-100350; Compression-Ignition Engines for
Agricultural Tractors; Actual Use Certificates,
Additional U.S. Rule 1(b); Section 10.138, Customs
Regulations (19 CFR 10.138)
Dear District Director:
This is our decision on Protest No. 1401-94-100350, filed
against your action in liquidating an entry of certain
compression-ignition internal combustion piston engines to be
installed in agricultural or horticultural machinery or equipment
under a dutiable provision for other engines. The entry was
liquidated dutiable on August 12, 1994, after expiration of the
three (3) year period prescribed by law for submitting
certificates of actual use to support duty-free entry under
subheading 8408.90.10, HTSUS. This protest was timely filed on
November 10, 1994.
Importations under subheading 8408.90.10, HTSUS, are based
on actual use. Additional U.S. Rule of Interpretation 1(b),
HTSUS, states that a tariff classification controlled by the
actual use to which the goods are put in the United States is
satisfied only if such use is intended at the time of
importation, the goods are so used and proof thereof is furnished
within 3 years after the date the goods are entered. See section
10.138, Customs Regulations (19 CFR 10.138).
In this case, protest is made against your decision to
liquidate the entry in question under subheading 8408.90.90,
Harmonized Tariff Schedule of the United States (HTSUS), a
provision for other engines. The rate of duty under this
provision is 3.7 percent ad valorem.
There is agreement that the requisite agricultural or
horticultural use was intended at the time of importation and
that the goods were so used. However, protestant has submitted
no evidence to support his failure to submit actual use
certificates within three (3) years after the date the goods were - 2 -
entered. There is no authority either to waive this requirement
or to extend the time period for compliance as it is imposed by
statute.
The protest should be DENIED. In accordance with Section
3A(11)(b) of Customs Directive 099 3550-065, dated August 4,
1993, Subject: Revised Protest Directive, you should mail this
decision, together with the Customs Form 19, to the protestant no
later than 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 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 to the public via the Diskette Subscription Service, the
Freedom of Information Act and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division