December 24, 2003 CBP Bulletin Notices on the Port Where a Protest is Filed and TRQ Merchandise Mistakenly Filed as Non-Quota

With respect to the revocation, CBP states that this action is effective for merchandise entered or withdrawn from warehouse for consumption on or after February 22, 2004. CBP also states that this notice covers any other ruling also meriting revocation to the same extent which could exist but which has not been explicitly identified.

With respect to the proposed revocation, CBP states that any party with interests in a protest concerning substantially identical circumstances should advise CBP by January 23, 2004, the date that written comments on the proposed ruling are due. CBP states that it is also proposing to revoke any treatment previously accorded by CBP to substantially identical transactions that is contrary to the position set forth in this notice.

Proposed Revocation of One Ruling

Filing a protest at the port of entry rather than at its service port. According to CBP, it is proposing to issue HQ 230095 in order to revoke HQ 963372.

In HQ 963372, an entry was made at the Battle Creek, MI port of entry on October 2, 1996. As CBP officials at the port of Battle Creek did not have the authority to either classify merchandise or liquidate entries, the entry was liquidated on September 26, 1997 by the Port Director at the CBP service port of Detroit, MI.

The entry filer subsequently protested the classification of these goods by filing a protest at the Battle Creek port on December 24, 1997. The protest was forwarded to CBP officials at the Detroit service port where it did not arrive until December 30, 1997. The protest was denied on April 16, 1999 by the Detroit Port Director because it was not timely filed at Detroit within 90 days of liquidation.

CBP states that the main issue of concern is whether the protest was timely filed at the port of entry if liquidation occurred at the service port.

CBP explains that it was unable to find any evidence of notice to the importing public that entries of merchandise entered at Battle Creek are liquidated at the discretion of the Detroit Port Director. Neither the courtesy notice of liquidation, the ACS records, nor the printed bulletin notice, advised importers that entries filed at Battle Creek were not liquidated there. Consequently, there is no evidence to show that an importer making entry through the port of entry at Battle Creek, would know or could be expected to know that the decision on liquidation of the entry would be that of the Detroit Port Director rather than the Battle Creek Port Director.

(CBP notes that on November 19, 2003, a supervisory CBP officer at the Detroit port informed a staff attorney from CBP Headquarters that it is the operational policy at Detroit to consider protests that have been timely filed at the Battle Creek location as timely filed, regardless of when such protests arrive at the Detroit port from Battle Creek.)

As a result, CBP is proposing to issue HQ 230095 in order to revoke HQ 963372 and indicate that the protest was timely filed when it was filed at the port through which the protested entry was entered, though not liquidated, within 90 days of liquidation.

Revocation of One Ruling

Entry of Merchandise Subject to TRQ. CBP is issuing HQ 115991 in order to revoke HQ 958810, and any other ruling not specifically identified.

In HQ 958810, the entry summary for certain produce (fresh tomatoes) subject to a TRQ was incorrectly filed as type 01 (non-quota). CBP explains that this resulted in the tomatoes not being presented to CBP for quota status, and thus not accorded the low (in-quota) rate of duty which was in effect at that time.

When CBP later discovered the error in the entry summary, the in-quota quantity under the TRQ had already filled; CBP then "unset" the liquidation and corrected the entry summary to be type 02 (quota). CBP then applied the high (over-quota) rate of duty to the merchandise, reasoning that the time CBP discovered the error constituted the time of presentation for quota purposes. However, HQ 958810 determined that the low (in-quota) rate of duty in effect when the entry summary was filed was instead applicable to the merchandise.

It is now the position of CBP that HQ 958810 is in error, and the entry should have been subject to the high (over-quota) rate of duty. CBP explains that the obligation clearly did not rest upon CBP to find and correct the mistake in the entry summary before the TRQ filled. Also, to afford the merchandise the low (in-quota) rate of duty after the TRQ filled would circumvent the TRQ, in violation of the law.

Therefore, CBP is issuing HQ 115991 in order to revoke HQ 958810, and any other ruling not specifically identified, in order to indicate that the higher rate of duty is applicable in this situation.

(See ITT's Online Archives or 11/04/03 news, 03110450, for BP summary of the proposed revocation.)

December 24, 2003 CBP Bulletin (Vol. 37, No. 52) available at http://www.cbp.gov/xp/cgov/toolbox/legal/bulletins_decisions/bulletins_2003/vol37_12242003_no52/