HQ 562342

April 26, 2002

CLA-2 RR:CR:SM 562342 KSG

CATEGORY: Classification

TARIFF NO.: 9817.00.98

Port Director

U.S. Customs Service

112 West Stutsman

Pembina, North Dakota 58271

RE: Application for Further Review of Protest No. 3401-01-100031;
subheading 9817.00.98; theatrical lighting equipment

Dear Director:

This is in reference to a Protest and Application for Further Review
timely filed by Westsun Toronto, Inc., contesting the denial of the duty
free exemption set forth at subheading 9817.00.98, of the Harmonized
Tariff Schedule of the United States ("HTSUS"), to imported theatrical
lighting equipment.

**FACTS:**

Westsun Toronto, Inc. is the importer of record in this case. Westsun
leased theatrical lighting equipment to Dublin Worldwide Dance
Productions. Dublin is a production company that put on a theatrical
show titled \"Spirit of the Dance\" that toured for 18 weeks in 2000-
2001. Westsun provided eight employees to Dublin on contract to provide
technical support.

The protestant has provided a copy of the lease agreement between it and
Dublin. The agreement provides that the eight touring technicians
supplied and paid by Westsun have the following responsibiliities:

1\. Provide and prepare production equipment systems according to tour
specifications and requirements.

2\. Provide touring technical crew to fulfill the touring needs of the
production.

3\. Technical direction and stage management.

4\. Arrange and supervise suppliers of tour accommodations, tour
transportation of equipment and personnel, routing logistics and travel
scheduling.

5\. Liaise with performance venues and calculate performance schedules.

6\. Provide updated technical rider and tour advancing of dates.

7\. Maintain in good working order all production systems.

8\. Review presenter contracts on behalf of Dublin Worldwide Dance
Productions, Inc. for obvious technical discrepancies and recommend
revisions or approval. Contracts shall be signed by the producer only.

**ISSUE:**

Whether the imported theatrical lighting equipment is eligible for
duty-free treatment under subheading 9817.00.98, HTSUS.

**LAW AND ANALYSIS:**

By Presidential Proclamation 6763 of December 23, 1994, 60 Fed. Reg.
1097 at 1292, January 4, 1995, heading 9813.00.65, HTSUS, was deleted
and subheading 9817.00.98, HTSUS was inserted in subchapter XVII of
chapter 98. Subheading 9817.00.98 provides, as follows:

Theatrical scenery, properties and apparel brought into the United
States by proprietors or managers of theatrical, ballet, opera or
similar productions or exhibitions arriving from abroad for temporary
use by them in such productions or
exhibitions.............................................Free

The precursor to subheading 9817.00.98 (the deleted heading 9813.00.65)
was a temporary bond provision and had a three-year limitation.
Subheading 9817.00.98, HTSUS, was originally proposed by a non-profit
opera organization to simplify entries of this type by removing the
bonding requirement.

Customs ruled on the applicability of subheading 9817.00.98, HTSUS, in
Headquarters Ruling Letter (\"HRL\") 561472, dated July 21, 2000. In
this ruling, Cirque du Soleil asked whether its scenery, costumes and
properties imported for use in its theater shows were eligible for entry
under subheading 9817.00.98, HTSUS. Customs concluded that the items
imported must be directly used in a theatrical production and that
Cirque du Soleil had to establish to the satisfaction of Customs at the
port of entry that the goods were used temporarily in the U.S. Customs
stated that Cirque du Soleil would qualify as a proprietor of a
theatrical production.

In this case, the entry is being made by Westsun, which is not a
theatrical company. The lighting equipment belongs to Westsun and was
leased to Dublin for temporary use by them in a dance production.
Subheading 9817.00.98, HTSUS, requires the properties to be \"brought
into the United States by proprietors or managers of theatrical, ballet,
opera or similar productions.\" Westsun is not the proprietor or manager
of the dance production involved in this case. Accordingly, the lighting
equipment is not eligible for classification in subheading 9817.00.98,
HTSUS.

**HOLDING:**

The imported theatrical lighting equipment is not eligible for duty-free
treatment under subheading 9817.00.98, HTSUS. Accordingly, you should
deny this protest.

In accordance with Section 3a(11)(b) of Customs Directive 099 3550-065,
dated August 4, 1993, this decision should be attached to Customs Form
19, Notice of Action, and 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 this decision. Sixty days from the date of this 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