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HQ 114134




June 19, 1998

QUO-1-RR:IT:EC 114134 CC

CATEGORY: ENTRY

Port Director
U.S. Customs Service
7097 S. Saragosa Rd.
El Paso, TX 79907

RE: Application for further review of Protest No. 2402-97-100032; 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 11 entries. All of the subject merchandise was imported and released between September 26 and September 30, 1996. To obtain release of the merchandise, the importer made entry 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 February 1997, the subject goods were rate advanced at the rate of 3.8›/kg under the tariff-rate quota provision, subheading 0709.60.20/9906.07.42, HTSUS. 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 July 18, 1997.

ISSUE:

When merchandise is released without filing the entry summary, pursuant to 19 CFR 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 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 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 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 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

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