HQ 223103: Application for Further Review of Protest No. 1001-90-007337, concerning liquidation of electro-mechanical linearactuators.

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 223103

                          June 28, 1993

LIQ-9-01-CO:R:C:E  223103  SR

CATEGORY:  Entry/liquidation

District Director of Customs
New York Seaport
6 World Trade Center
New York, New York  10048

RE:  Application for Further Review of Protest No. 1001-90-
007337, concerning liquidation of electro-mechanical linear
actuators.

Dear Sir:

     The above-referenced protest was forwarded to our office on
Application for Further Review of Protest No. 1001-90-007337,
dated August 29, 1990.  We have considered the facts and the
issue raised; our decision follows.

FACTS:

     Electro-mechanical linear actuators were imported by Klinger
Scientific Corp. for use in a NOVA laser-generation system by
Lawrence Livermore National Laboratory, University of California. 
The actuators were entered in twelve separate entries from March
17, 1982 through February 3, 1984.  The purchaser, a non-profit
institution established for educational or scientific purposes,
filed a Commerce form ITA-338P requesting duty-free treatment of
the actuators under item 851.60, Tariff Schedules of the United
States (TSUS), which provides for articles entered for the use of
any nonprofit institution, whether public or private, established
for educational or scientific purposes; instruments and
apparatus, if no instrument or apparatus of equivalent scientific
value for the purposes for which the instrument or apparatus is
intended to be used is being manufactured in the United States. 
Merchandise classified under this provision is entered at a free
rate of duty.
  
     The ITA-338 was filed with each entry and forwarded to the
Department of Commerce.  By letter dated June 15, 1982, the
Department of Commerce notified the Customs Service that the
linear actuators were not scientific instruments.  The Customs
Service notified the importer by letter HQ 724690 dated March 9,
1984, that the linear actuators were not eligible for duty-free
entry under item 851.60, TSUS.  


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     The Department of Commerce Federal Register notice of
September 17, 1986 (51 F.R. 39935) stated that the applicant's
request for duty-free treatment was revoked by the Customs
Service letter of March 9, 1985.  Since the actual date of the
letter was March 9, 1984, the notice was erroneous in this
respect.

     The applicant requested internal advice on January 16, 1987,
through the Kennedy Airport Area.  That request was answered by
HQ 084541, dated April 9, 1990, which held that the linear
actuators were classifiable in item 708.93, TSUS, and affirmed HQ
724690 stating that the actuators were not eligible for duty-
free treatment under item 851.60, TSUS.

     The entries were liquidated dutiable on June 1 and 15, 1990. 
The protest appears to have been filed on August 29, 1990 by the
importer.  The surety protested separately on November 13, 1990. 
The surety protest certified that its protest was not filed
collusively.  The importer's protest principally claims that the
liquidations of June 1 and 15, 1990 were deemed liquidated before
those dates by operation of law.

ISSUE:

     Whether the entries were deemed liquidated by operation of
law according to 19 U.S.C. 1504(b).

LAW AND ANALYSIS:

     Extension of liquidation is provided for under 19 U.S.C.
1504(b) as follows:

     (b) Extension.--The Secretary may extend the period in which
     to liquidate an entry by giving notice of such extension to
     the importer, his consignee, or agent in such form and
     manner as the Secretary shall prescribe in regulations, if-
     -
          (1) information needed for the proper appraisement or
          classification of the merchandise is not available to
          the appropriate customs officer;
          (2) liquidation is suspended as required by statute or
          court order; or
          (3) the importer, consignee, or his agent requests such
          extension and shows good cause therefor.

                            *   *   *

          (d)  Limitation.--Any entry of merchandise not
          liquidated at the expiration of four years from the 

                               -3-


          applicable date specified in subsection (a) of this
          section shall be deemed liquidated at the rate of duty,
          value, quantity, and amount of duty asserted at the
          time of entry by the importer, his consignee, or agent,
          unless liquidation continues to be suspended as
          required by statute or court order. *   *   *

          According to the Customs Regulations of 1982, if
merchandise is entered desiring to obtain free entry of an
instrument or apparatus under item 851.60, TSUS, liquidation will
be suspended.  19 CFR 10.114(d)(2) (1982 ed.) states as follows:

     (2) Liquidation procedures.  Except as otherwise provided
     herein, liquidation of an entry with respect to which duty-
     free treatment under item 851.60, TSUS, is claimed shall be
     suspended for a period of 180 days from the date of entry.  
      . . . With respect to entries for which an appropriate Form
     ITA-338P has been timely filed, liquidation shall be
     suspended until the official designated by the Secretary of
     Commerce has notified the district director of customs
     concerned of the final determination with respect to the
     application relating to the entered merchandise.

       When Klinger requested duty free treatment under item
851.60, TSUS, Customs suspended the liquidation according to 19
CFR 10.114(d)(2), and requested a determination from the
Secretary of Commerce.  Customs records show that notice of
suspension for each entry was sent to both the importer of record
and the surety.  

     Based on the technical advice received from the Bureau of
Standards, the Customs Service determined that the actuators were
neither an instrument nor an apparatus within the meaning of item
851.60, TSUS.  That determination has been consistently followed
in HQ 724690 and HQ 084541.  The Federal Register notice of
September 17, 1986, added no new information with respect to that
determination.

     By virtue of T.D. 82-224, the procedure for indefinite
suspension of liquidation provided in 19 CFR 10.114(d)(2) (1982
ed.) was superseded on November 29, 1982.  As a result,
implementation of item 851.60, TSUS, is provided by 15 CFR Part
301.  Part 301 does not expressly provide for unlimited
suspension of liquidations until the designated Commerce official
notifies the concerned district director of the final
determination.  Instead, notice is provided to the applicant and
by publication in the Federal Register.

     Assuming, without deciding, that the suspension requirement


                               -4-


provided by 19 CFR 10.114(d)(2) permitted a basis to extend
liquidation under 19 U.S.C. 1504(b)(2), the effect of the Customs
determination of ineligibility must be considered.  The Customs
Service determined in HQ 724690 that the linear actuators were
neither instruments nor apparatus under 851.60, TSUS.  Under 15
CFR 301.4(a)(2) the Customs Service was to determine whether an
instrument fell within the classes of instruments eligible for
consideration for treatment under item 851.60, TSUS.  Customs
letter HQ 724690 must be considered a negative determination,
within the Customs area of jurisdiction, that the actuators were
within the scope of the Act.  The Federal Register notice of
September 17, 1986 shows that the Department of Commerce
recognized that HQ 724690 was such a negative determination.

     Having determined that the actuators were outside the scope
of item 851.60, TSUS, there was no basis to suspend liquidation
under whatever authority may have existed under 19 CFR
10.114(d)(2) (1982 ed.).  That is, the Customs determination of
March 9, 1984, made any determination by the Department of
Commerce moot.  Under no circumstances could any subsequent
Commerce decision affect the classification of the actuators. 
Any authority to suspend liquidation under 19 CFR
10.114(d)(2)(1982 ed.) ceased on March 9, 1984, because the sole
purpose of suspension was to permit a determination of
eligibility by the Department of Commerce.  If an article was
determined by the Customs Service to be an instrument or
apparatus that was classifiable within any of the provisions
listed in headnote 6(a), Part 4, Schedule 8, TSUS (19 U.S.C.
1202), the Department of Commerce was to determine whether there
was a domestic instrument of equivalent scientific value.  In
reaching that determination, the Department of Commerce was
required to permit public comment.  If the ultimate eligibility
determination depended on a determination by the Department of
Commerce, there would be a logic to the liquidation suspension
because Customs could not act.  The March 9, 1984, determination
foreclosed the only possible purpose of 19 CFR 10.114(d)(2)(1982
ed.) for a continuation of suspension.  

     Consequently, assuming the existence of a valid suspension
which prevented a deemed liquidation beyond the first year, that
logic would fail after the Customs determination of ineligibility
on March 9, 1984.  Since any suspension under 19 CFR
10.114(d)(2)(1982 ed.) would have to be considered lifted on
March 9, 1984, the failure to liquidate within the four-year
period set by 19 U.S.C. 1504(d) must be considered.  The court in
Nunn Bush Shoe Co. v United States, ___ CIT ___, Slip Op. 92-9
(1992) held that when valid suspensions were lifted before the
entries were four years old, they were deemed liquidated by 




                               -5-


operation of law on the fourth anniversary of the period that
began on the respective entry dates.

     The Federal Register notice of September 17, 1986, can not
be considered the act which lifted the suspension because that
notice did no more than acknowledge that the prior Customs
determination of ineligibility rendered any consideration by the
Department of Commerce moot.  

     The request for internal advice cannot be considered a
request pursuant to 19 U.S.C. 1504(b)(3).  There is no language
in HQ 084541 to show that such a request was considered or
granted.  Moreover, such a request in 1987 would be ineffective
for entries made in 1982 under 19 U.S.C. 1504(d).  Nor can the
request for internal advice be considered a waiver of 19 U.S.C.
1504.  See  United States v. Cocoa Berkau, Inc., and Washington
International Insurance Co., Appeal No. 92-1390 U.S. Court of
Appeals for the Federal Circuit, (March 30, 1993), 789 F.Supp.
1160 (Ct. Int'l Trade 1992) which held that only administrative
proceedings that are required by contract or law can toll the
running of a limitation period.  

HOLDING:

     The merchandise at issue is deemed liquidated according to
19 U.S.C. 1504(d), as asserted at the time of entry by the
importer.

     Accordingly you are directed to allow the protest.  A copy
of this decision should be furnished to the protestant in order
to satisfy the notice requirement of section 174.30(a), Customs
Regulations.

                                   Sincerely,




                                   John Durant
                                   Director
                                   Commercial Rulings Division