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HQ 957930





July 10, 1995

CLA-2 R:C:F 957930 ALS

CATEGORY: CLASSIFICATION

TARIFF NO.: 0103.91.0000; 0103.92.0000

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

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.

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

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