CLA-2 R:C:F 957930 ALS
District Director of Customs
477 Michigan Ave., Room 200
Detroit, MI 48226
RE: Request for Further Review of Protest 3801-94-102712, dated
June 9, 1994, Concerning Multiple Entries of Live Swine from
Canada
Dear Mr. Morandini:
This ruling is on a protest that was filed against your
decision of March 11, 1994, in the liquidations of multiple
entries covering the Live Swine from Canada against which
countervailing duties were assessed.
FACTS:
The entries under consideration cover live swine of various
types from Canada which are not purebred, against which
countervailing duty has been assessed. These grade (nonpurebred)
live swine are classifiable in 0103.91.0000 or 0103.92.0000,
Harmonized Tariff Schedule of the United States Annotated
(HTSUSA) depending on whether each animal weighs less than 50 kg.
or 50 kg. or more. All live swine, except purebred breeding
animals, are classifiable in one of these subheading whether they
are being imported for breeding, slaughter, or other purposes.
ISSUE:
Are grade live swine from Canada covered by the entries
which are subject of the instant protest subject to
countervailing duty pursuant to countervailing duty case number
C-122-204?
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LAW AND ANALYSIS:
Classification of merchandise under the HTSUSA is governed
by the General Rules of Interpretation (GRI's) taken in order.
GRI 1 provides that the classification is determined first in
accordance with the terms of the heading and any relative section
and chapter notes. If GRI 1 fails to classify the goods and if
the headings and legal notes do not otherwise require, the
remaining GRI's are applied, taken in order.
In the protest and documents submitted therewith, we note
that both the importer and Customs at the port of entry agree
that the subject swine are other than purebred breeding animals
and are classifiable in subheading 0103.91.0000 or 0103.92.0000,
HTSUSA, depending on the weight of each animal. The only
question to be resolved is whether the live swine covered by the
entries being protested are subject to countervailing duty
pursuant to countervailing duty case number C-122-404.
In this regard we note that the Department of Commerce,
International Trade Administration (ITA) published in the Federal
Register of March 16, 1994 (59 FR 12243), the final results of
the countervailing duty administrative review of live swine from
Canada (C-122-404). The review covered shipments of live swine,
except breeding swine, from Canada, for the period April 1, 1990
through March 31, 1991. Imports covered by the review were noted
to be currently classifiable under subheadings 0103.91.0000 and
0103.92.0000, HTSUSA. The net subsidy for such merchandise was
found to be Canadian $0.0295 per kilogram.
Implementing instructions issued by Customs Headquarters
appeared to indicate that only purebred swine were exempted from
the assessment of countervailing duties. We sought clarification
of this matter with both the Department of Agriculture, Animal
and Plant Health Inspection Service, (APHIS) and the ITA.
APHIS advised us that live swine for breeding purposes may
be either purebred or grade (nonpurebred) animals. They also
noted that the importations of such animals will normally cover a
small number of animals and that they will be irregularly
imported for any particular consignee. While there are no firm
guidelines, APHIS informally suggested that the importation of
more than 25-30 animals and, particularly, if done on a regular
basis, was a prima facie indication that the animals were being
imported for other than breeding purposes. APHIS further noted - 3 -
that a Declaration of Importation (VS Form 17-29) and a Report of
Animal, Poultry or Eggs Offered for Importation (VA Form 17-30)
containing a Certificate of Inspection by the APHIS Veterinary
Inspector at the port of entry, as to the absence of communicable
diseases, should be submitted for each consignee.
ITA has advised us that live swine imported from Canada for
breeding purposes, whether purebred or grade, are exempt from
countervailing duties. That agency also indicated that
importer's statement on the Declaration of Importation
(VS Form 17-29) and the Report of Animals, Poultry or Eggs
Offered for Importation (VS Form 17-30), indicating the animals
were being imported for breeding purposes, and the USDA
veterinary inspector's certification that the animals are free of
evidence of communicable diseases, should be used to ascertain
whether the live swine were exempt from countervailing duty.
Accordingly, we have concluded that live swine from Canada,
purebred or grade, which are being imported for breeding
purposes, as noted on Forms VS 17-29 and 17-30, are exempt from
countervailing duties as imposed pursuant to case number C-122-
404.
HOLDING:
Live swine from Canada, except for purebred or grade swine
brought in for breeding purposes, are subject to countervailing
duties pursuant to case number C-122-404. Documents containing
the importer's declaration of intended use, e.g., Forms VS 17-29
and 17-30, accompanying the Customs entry documents should be
accepted as evidence of the intended purposes of the importation
absence evidence to the contrary. Such animals classifiable in
0103.10.0000, HTSUSA, (purebred breeding animals), and animals
classifiable in 0103.91.0000 or 0103.92.0000, HTSUSA, (other live
swine) which are being imported for breeding purposes, are exempt
from countervailing duties and are otherwise subject to a free
rate of duty. Live swine classifiable in the last 2 noted
subheadings and being imported for purposes other than breeding
are subject to the countervailing duties imposed by case C-122-
404 and are otherwise subject to a free rate of duty.
Since the above determination will result in the same rate
as claimed you are instructed to allow the protest in full.
A copy of this ruling should be attached to the Customs Form
19 and provided to the protestant as part of the notice of action
on the protest.
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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 provided 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 this decision
must be accomplished prior to the 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,
John Durant , Director
Commercial Rulings Division