HQ 226900: Application for Further Review of Protest No. 3901-95-101664;Immediate Transportation;Effective Duty Rate; GATT; 19 U.S.C. 1315; 19 CFR 141.69

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 226900

                          August 5, 1996

ENT-1-03/ENT-1-07/ENT-5-01-RR:IT:EC 226900 GEV

CATEGORY: Entry

Port Director 
U.S. Customs Service
610 S. Canal Street
Chicago, Illinois 60607

RE: Application for Further Review of Protest No. 3901-95-101664;
Immediate                                    Transportation;
Effective Duty Rate; GATT; 19 U.S.C.  1315; 19 CFR  141.69

Dear Sir:

     This is in response to your memorandum dated April 11, 1996,
forwarding the above-referenced protest for further review with
accompanying documentation.  Our decision in this matter is set
forth below.

FACTS:

     Pleasant Company, (i.e., the "protestant") imported toys
covered by entry nos. 230-0006517-9 (filed December 19, 1994,
liquidated April 7, 1995); 230-0006518-7 (filed December 19,
1994, liquidated April 28, 1995); 230-0006528-6 (filed December
20, 1994, liquidated April 7, 1995); and 230-0006541-9 (filed
December 19, 1994, liquidated April 28, 1995).  All of the
subject merchandise arrived in the United States at Seattle,
Washington, and was entered for immediate transportation ("IT")
to Chicago, Illinois, on the respective dates of entry.  The
entry summary (CF 7501) for each entry showed a 1994 duty rate of
6.8% ad valorem pursuant to subheading 9503.90.6000 of the
Harmonized Tariff Schedule of the United States, Annotated
(HTSUSA).  Subsequent to their respective liquidations, the
above-referenced protest covering the aforementioned entries was
timely filed on July 6, 1995.  

     The protestant claims that notwithstanding the January 1,
1995, effective date of the General Agreement on Tariffs and
Trade ("GATT") which eliminated the duty assessed on merchandise
classified under subheading 9503.90.6000, HTSUSA, the subject
1994 entries should nonetheless receive retroactive duty-free
treatment.  In support of this claim, the protestant cites                                - 2 -

the following: an unnumbered Customs administrative message
issued via ABI on January 4, 1995 (a copy of which was appended
to the protest); and Headquarters messages 943620201, 943490201
and 9435501.

ISSUE:

     Whether the subject merchandise, entered for immediate
transportation in December of 1994 and liquidated at the 1994
duty rate of 6.8% ad valorem pursuant to subheading 9503.90.6000,
HTSUSA, should receive retroactive duty-free treatment pursuant
to GATT which eliminated the aforementioned ad valorem duty rate
effective January 1, 1995, for merchandise classified under that
same tariff provision.  

LAW AND ANALYSIS:

     The effective rates of duty for merchandise imported into
the United States are provided for in 19 U.S.C.  1315.  That
statute, as amended by  633 of title VI of the North American
Free Trade Agreement Implementation Act (Public Law 103-182; 107
Stat. 2057, 2198), provides, in pertinent part, that:

     (a) Except as otherwise specially provided for, the rate or
rates of duty imposed by
     or pursuant to this chapter or any other law on any article
entered for consumption
     or withdrawn from warehouse for consumption shall be the
rate or rates in effect
     when the documents comprising the entry for consumption or
withdrawal from 
     warehouse for consumption and any estimated or liquidated
duties then required
     to be paid have been deposited with the Customs Service by
written, electronic
     or such other means as the Secretary by regulation shall
prescribe, except that--
               *              *              *
          (2) any article which is not subject to a quantitative
or tariff-rate quota
          and which is covered by an entry for immediate
transportation made at
          the port of original transportation under section 1552
of this title, if
          entered for consumption at the port designated by the
consignee, or
          his agent, in such transportation entry without having
been taken into
          the custody of the appropriate customs officer under
section 1490 of this
          title, shall be subject to the rate or rates in effect
when the transportation
          entry was accepted at the port of original importation;
and 
          (Emphasis Added)

     Section 141.69(b), Customs Regulations (19 CFR  141.69(b)),
promulgated pursuant to the above statute, provides as follows:

     (b) Merchandise which is not subject to a quantitative or
tariff-rate quota and 
     which is covered by an entry for immediate transportation
made at the port of 
     original importation, if entered for consumption at the port
designated by the 

                              - 3 -

     consignee or his agent in such transportation entry without
having been taken 
     into custody by the port director for general order under
section 490, Tariff 
     Act of 1930, as amended (19 U.S.C. 1490), shall be subject
to the rates in effect 
     when the immediate transportation entry was accepted at the
port of original 
     importation. (Emphasis added)

     In regard to the duty-free treatment accorded merchandise
classified under subheading 9503.90.6000, HTSUSA, pursuant to
GATT, we note that on December 8, 1994, Congress passed the
Uruguay Round Agreements Act ("URAA") which reduced or eliminated
duties on various products, including the merchandise classified
under the aforementioned tariff provision.  On December 28, 1994,
President Clinton signed Proclamation 6763 which implemented the
aforementioned duty eliminations making them effective with
respect to goods entered on or after January 1, 1995.   (See
paragraph (2)(a) of the proclamation)

     In regard to the entries under consideration, we note that
each covers merchandise (toys)  not subject to a quantitative or
tariff-rate quota and entered for immediate transportation to
Chicago in December of 1994 at the port of original importation
(Seattle).  Accordingly, pursuant to the above-discussed
statutory and regulatory authority (19 U.S.C.  1315(a)(2) and 19
CFR 
 141.69(b)), the subject merchandise is dutiable at the 1994
duty rate of 6.8% ad valorem pursuant to subheading 9503.90.600,
HTSUSA. 

     In support of its claim that the subject merchandise should
be accorded retroactive duty-free treatment, the protestant
quotes, in part, the following passage from the unnumbered
Customs administrative message of January 4, 1995:

     ...for shipments released December 16 through December 31,
1994, Headquarters
     has granted blanket ID privileges to all non-quota
shipments...the filer can have 
     merchandise released on a CF 3461 and pay the duty in effect
at the time of entry
     summary (10 working days after release).  Headquarters has
made this retroactive
     because so many filers did not understand the proper
procedures for designating
     a CF 3461 as an immediate delivery document...Thus direct
arrivals released from
     December 16 through December 31 can use 1995 duty rates.

     Notwithstanding the fact that administrative messages cannot
supersede the legislative and regulatory authority discussed
above, we note that the protestant cited only a portion of this
message which further provides, in pertinent part, as follows:

     IT Shipments:

     The IT date determines the rate of duty on any entry that is
entered on an IT.
     Import specialists should be especially mindful of this when
reviewing entries
     because many filers do not understand this point and think
they should use the
                              - 4 -

     1995 rates when in fact the 1994 rates apply to 1994 ITs,
even if the merchandise
     was entered for consumption in 1995.  (Emphasis added)

     Consequently, rather than supporting the protestant's
contention, this administrative message reflects the provisions
in both 19 U.S.C.  1315(a)(2) and 19 CFR  141.69(b) specifying
the rate of duty as that which is in effect on the IT date.  As
noted above, all four of the entries covered in the subject
protest have IT dates of December 1994 which, as discussed above,
pre-date the January 1, 1995, effective date for the elimination
of duty on the subject merchandise. 
   
     The three remaining administrative messages cited by the
protestant which address year-end duty rates also fail to support
the requested relief.  Headquarters message 94362021, dated
December 28, 1994, provided, in pertinent part, that "...the use
of the 1995 entry summary date as the entry date for those
shipments released on or after December 16, 1994, until December
31, 1994, will be allowed."  This instruction is inapplicable to
the protestant's claim since none of the CF 7501s covering the
entries in question references a 1995 entry date.  Headquarters
message 943490201, dated December 15, 1994, provided procedures
by which entry filers could elect a date of entry in order to
take advantage of tariff changes or special programs.  However,
the protestant has failed to provide any analysis as to how it
complied with those procedures.  Headquarters message 9435501,
dated December 21, 1994, provided, in pertinent part, that, "The
applicable rate of duty will be determined in accordance with 19
CFR 141.69."  As discussed above,  141.69(b) specifies the rate
of duty as that which is in effect on the IT date, which, in the
case of each of the four entries under consideration, is in
December of 1994.  Consequently, none of the administrative
messages cited by the protestant provides the relief requested
but rather bolsters Customs position in this matter.                           

     Parenthetically, we note that Headquarters message 9536301,
dated December 29, 1995, in providing a clarification of year-end
immediate delivery procedures to entry filers who want to take
advantage of reduced tariff rates or special programs which start
in the next calendar year, states that, "This message
incorporates and supersedes all previous messages on the subject
of year-end Immediate Delivery procedures."  It further provides,
in part, that, "...merchandise moved under IMMEDIATE
TRANSPORTATION (IT), can NOT use the ID procedure."   Customs
liquidation of the subject entries at the 1994 duty rate is
therefore consistent with this message and in accordance with the
above-discussed legislative and regulatory authority.  
 
HOLDING:

     The subject merchandise, entered for immediate
transportation in December of 1994 and liquidated at the 1994
duty rate of 6.8% ad valorem pursuant to subheading 9503.90.600,
HTSUSA, should not receive retroactive duty-free treatment
pursuant to GATT which eliminated the aforementioned ad valorem
duty rate effective January 1, 1995, for merchandise classified
under the same tariff provision.  


                              - 5 -

     Accordingly, the protest is denied.

     In accordance with  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 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 mailing 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
Ruling Module in ACS and the public via the Diskette Subscription
Service, Freedom of Information Act and other public access
channels.  

                              Sincerely,




                              Director
                              International Trade Compliance
Division