QUO-1-RR:IT:EC 114136 CC
Port Director
U.S. Customs Service
7097 S. Saragosa Rd.
El Paso, TX 79907
RE: Application for further review of Protest No. 2402-97-100040; Chili peppers; Tariff-rate quota; Time of entry; 19
CFR 141.68(a); HQ 225410; HQ 114067
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 merchandise the subject of this protest consists of
chili peppers imported from Mexico. This protest consists of
approximately 180 entries. All of the subject merchandise was
imported and released between September 18 and September 30,
1996. To obtain release of the merchandise, the importer filed
a CF 3461 with all of the subject entries, and the goods were
entered pursuant to 19 CFR 141.68(a). Thus, all of the entries
were made prior to October 1, 1996.
The subject merchandise was entered under subheading
0709.60.20/9906.07.41 of the Harmonized Tariff Schedule of the
United States (HTSUS), which provided a free rate of duty for
chili peppers entered between August 1 and September 30. For
chili peppers entered between October 1, 1996 and July 31, 1997,
the applicable subheading was 0709.60.20/9906.07.42, HTSUS, a
tariff-rate quota provision pursuant to the North American Free
Trade Agreement (NAFTA), providing a duty rate of 3.8›/kg, or
subheading 0709.60.20/9906.07.43, HTSUS, the over-quota rate,
providing a duty rate of 5.1›/kg.
All of the entry summaries were filed after September 30,
1996, but within 10 working days of the date of release. In
October 1996, your office issued CF 29's, advising that the chili
peppers were reclassified under the tariff-rate quota provision,
subheading 0709.60.20/9906.07.42, HTSUS, dutiable at the rate of
3.8›/kg. You state that the rationale for that decision was that
the date of entry for the chili peppers was when the entry
summaries were filed, based on Headquarters Ruling (HQ) 225410,
dated September 20, 1994, making the goods subject to the tariff-rate quota and therefore dutiable.
The subject entries were liquidated on May 23, 1997. The
protest was filed on August 19, 1997.
ISSUE:
When merchandise is released without filing the entry
summary, pursuant to 19 CFR
141.68(a), in a time period when the merchandise is not under
any quota restrictions, but the entry summary is subsequently
filed when the merchandise is subject to a tariff-rate quota,
what is the date of entry.
LAW AND ANALYSIS:
In HQ 225410 we found that when merchandise is released,
pursuant to 19 CFR
141.68(a), in a time period when it is not under any quota
restrictions, and the entry summary is subsequently filed when
the merchandise is subject to a tariff-rate quota, the date of
entry is the date that the entry summary was filed in proper
form, with estimated duties attached (unless ABI procedures are
used), pursuant to 19 CFR 141.68(d). In such a situation,
therefore, the merchandise would be subject to the tariff-rate
quota.
In HQ 114067, dated November 12, 1997, copy enclosed, we
revoked HQ 225410, finding that in the situation described above,
the date of entry is determined by 19 CFR
141.68(a) and not 19 CFR 141.68(d). Since the date of entry
would be prior to the opening of the quota period, the
merchandise would not be subject to a tariff-rate quota. We note
that pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C.
1625(c)(1)), as amended by section 623 of Title VI (Customs
Modernization) of the North American Free Trade Agreement
Implementation Act (Pub.L. 103-182, 107 Stat. 2057), notice of
the proposed revocation of
HQ 225410 was published in the Customs Bulletin, with the
opportunity for interested parties to comment. HQ 114067,
revoking HQ 225410, was published on December 3, 1997, in the
Customs Bulletin, Vol. 31, No.49.
The factual situation and issue raised in this protest are
similar to that of HQ 114067. In this protest, the chili peppers
were released pursuant to 19 CFR 141.68(a) prior to October 1,
1996, when the such goods were not subject to the tariff-rate
quota. The entry summaries were filed after the date such goods
were subject to a tariff-rate quota. Based on HQ 114067, we find
that the date of entry for the chili peppers was when the goods
were released and entry was filed pursuant to 19 CFR 141.68(a).
Since the dates of entry were prior to opening of the quota
period, the chili peppers should not be subject to quota, and are
non-dutiable under subheading 0709.60.20/9906.07.41, HTSUS.
HOLDING:
When merchandise is released without filing the entry
summary, pursuant to 19 CFR
141.68(a), in a time period when the merchandise is not under
any quota restrictions, but the entry summary is subsequently
filed when the merchandise is subject to a tariff-rate quota, the
date of entry is not when the entry summary is filed, but the
date of entry provided by 19 CFR
141.68(a). The merchandise would not be subject to quota, and
the dutiable rate would be that applicable at the date of entry
as provided by 19 CFR 141.68(a). 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