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HQ 114965

November 17, 2000

QUO-2-01-RR:IT:EC 114965 CC


Attn: Protest Section
U.S. Customs Service
819 Water St., Bldg. 6
Laredo, TX 78040

RE: Application for further review of Protest No. 2304-99-100108; TPL; 19 CFR § 12.132(b); Certificates of Eligibility

Dear Sir:

The above-referenced protest was forwarded to this office for further review. We have considered the facts and issues raised, and our decision follows.


The merchandise the subject of this protest consists of women’s trousers and shorts. The protest consists of 2 entries, which were made on March 5, 1998. The merchandise is classified under subheading 9802.00.8065 of the Harmonized Tariff Schedule of the United States (HTSUS). In addition, under subheading 9999.00.60, HTSUS, the merchandise was eligible for a Tariff Preference Level (TPL) under the North American Free Trade Agreement (NAFTA) with the submission of valid certificates of eligibility.

At the time of entry, valid certificates of eligibility were not submitted. A Supplemental Information Letter (SIL) with certificates of eligibility was submitted on April 19, 1998. Because the certificates were not valid for the subject entries, the claim for these entries in the SIL was rejected on May 1, 1998. Protest No. 2304-98-100091 was filed for these two entries, along with four other entries, on July 9, 1998. The subject entries were liquidated on January 5, 1999. Because the subject entries had not been liquidated when that protest was filed, the protestant was informed on February 17, 1999, that the protest for the subject entries was filed prematurely and could be filed again.

The TPL claim for the other four entries of Protest No. 2304-98-100091 was granted in HQ 114765, dated November 23, 1999. The protestant filed this timely and valid protest on March 9, 1999.


Whether the subject entries are eligible for preferential tariff treatment under TPL’s.


Many goods entered from Mexico and Canada which are considered “originating” goods from those countries are granted preferential tariff treatment under NAFTA. In addition specified textile and apparel goods imported into the U.S. from Canada or Mexico which are not “originating” goods may nevertheless be granted preferential tariff treatment like originating goods up to specific annual quantitative TPL’s. Once a TPL applicable to a NAFTA country’s exports to another NAFTA country has been reached, any further exports of goods of that TPL category to the same NAFTA country during that year may not be accorded NAFTA preferential tariff treatment, but rather will be subject to duty at the most-favored nation rate. See T.D. 95-98, the final rule implementing the submission of certificates of eligibility in 19 CFR § 12.132(b). Consequently, a TPL is a type of tariff-rate quota.

Concerning making a claim for preferential duty treatment as a TPL, 19 CFR § 12.132(b) provides the following:

In connection with a claim for NAFTA preferential tariff treatment involving non-originating textile and apparel goods subject to the tariff preference level provisions of appendix 6.B. to annex 300-B of the NAFTA and Additional U.S. Notes 3 through 6 to Section XI, Harmonized Tariff Schedule of the United States, the importer shall submit to Customs a Certificate of Eligibility covering the goods. The Certificate of Eligibility shall be properly completed and signed by an authorized official of the Canadian or Mexican government and shall be presented to Customs at the time the claim for preferential tariff treatment is filed under § 181.21 of this chapter.

Concerning the filing of a certificate of eligibility and a claim for preferential tariff treatment as a TPL after the entry is filed, T.D. 95-98 states, in a discussion of public comments on this issue, the following:

While a failure to supply the required Certificate of Eligibility will preclude the filing of a claim for preferential tariff treatment and will result in liquidation of the entry at the non-preferential duty rate, Customs believes that importers in most cases will have adequate opportunity, following the date of entry, to submit the Certificate and make the claim when the Certificate is not available at the time of entry. Customs notes in this regard that the importer may supply the necessary documentation and make the claim either at any time prior to final liquidation or in connection with the filing of a protest within 90 days following final liquidation.

We first note that the applicable laws and regulations do not specifically provide for TPL’s in the quota regulations, part 132. Therefore, there are certain issues that are not specifically provided for by the regulations, e.g., what is the time of presentation for a TPL. Consequently, when this is the case, we will look to the intent of the regulations concerning tariff-rate quotas, and apply those principles to TPL’s.

Since the date of presentation determines the quota priority and status and determines when the quota is charged for tariff-rate quotas (See 19 CFR §§ 132.1(d), 132.11a, and 141.68(d)), we must first determine what is the date of presentation for the scenario described. The time of presentation is the time entry summary is delivered in proper form with estimated duties attached (unless ABI procedures are used). Thus for other tariff-rate quotas, whether the merchandise is subject to quota and if so, whether it takes the reduced or over-quota rate under the tariff-rate quota, is determined when the entry summary is filed. For a TPL, the date of presentation may not be when the entry summary is filed since 19 CFR 12.132(b) provides that a certificate of eligibility must be submitted when a claim for treatment as a TPL is made and thus the entry summary may be filed without submitting the certificate of eligibility. T.D. 95-98, which includes comments on the implementation of section 12.132(b), states that the submission of the certificate of eligibility and thus the claim for preferential treatment as a TPL may be made prior to liquidation or after liquidation with a timely filed protest. Consequently, the date of presentation for merchandise eligible for a TPL, which is entered without the submission of the certificate of eligibility, should be the time the valid certificate of eligibility is submitted, with a SIL prior to liquidation or a valid protest within 90 days of liquidation.

The protestant had filed a SIL in April 1998, about 6 weeks after entry of the subject merchandise. You denied that claim because the certificates of eligibility were not valid. About 3 months later, in July 1998, the protestant filed a protest with certificates of eligibility for the subject entries along with other entries. At the time that protest was filed, the subject entries had not been liquidated. 19 U.S.C. § 1514(c)(3)(A) provides that a protest shall be filed with the Customs Service within ninety days after but not before (emphasis added) notice of liquidation or reliquidation. Thus a valid claim for TPL treatment could not be made by that protest. The manner in which to have made that claim, prior to liquidation, was by a SIL. In addition, there is no statute, regulation, or court case that would allow a filed protest on a CF 19 to be treated as a SIL. Consequently, the date that protest was filed, July 9, 1998, could not set the time of presentation for the subject entries.

You notified the protestant and gave it the opportunity to file a valid protest after the entries were liquidated in January 1999. The protestant filed a timely filed protest with valid certificates of eligibility for the subject entries on March 9, 1999. Consequently, that is the date that a valid claim for TPL treatment was made and could set the date of presentation. Thus, in this case the subject merchandise was released in 1998 and the protest with valid certificates of eligibility was filed in 1999. The question which arises is whether the merchandise can take a presentation date in 1999, and the TPL would be charged to 1999, if it were still open at the time of presentation. 19 CFR § 142.23 and 19 CFR § 142.21(e) provide that for merchandise subject to quota, the entry summary must be filed and the estimated duties must be deposited within 10 days or before the end of the quota period, whichever expires first. Based on these regulations, in Headquarters Ruling (HQ) 114071, dated January 15, 1998, in which we note that the tariff-rate quota involved in that ruling was a TPL, we stated the following:

Clearly the regulations provide that for merchandise subject to a tariff-rate quota and released by immediate delivery near the end of a quota period, entry summary must be filed by the end of that quota period if it occurs prior to 10 working days of the date of release. In such a scenario, if the regulations are followed, entry summary would be filed and presentation would occur before the end of the quota period in which release occurred. Consequently, the purpose of the applicable regulations, 19 CFR § 142.23 and 19 CFR § 142.21(e), is clear: to ensure that importers may not gain release of merchandise subject to a tariff-rate quota at the end of a quota period and file entry summary after the close of that period in order to circumvent the tariff-rate quota in effect at the time of release.

If the date of presentation is considered to be in 1999 and quota for that period is applicable to the subject merchandise, then the tariff-rate quota at the time of release would be circumvented. Such an outcome is inconsistent with 19 CFR § 142.23, 19 CFR § 142.21(e), and HQ 114071. Consequently, in order for the TPL to be charged to the period in which the merchandise was released, and to establish a date of presentation consistent with the quota period in which merchandise was released, the date of presentation for the subject merchandise should be the last day of the quota period in which the goods were released.

Since the goods were released in 1998, the date of presentation should be December 31, 1998. On that date the 1998 TPL had filled already, having filled on September 11, 1998. Consequently, the subject merchandise is not eligible for preferential tariff treatment under TPL’s for the 1998 quota period.


The subject entries are not eligible for preferential tariff treatment under TPL’s. Consequently, the protest should be DENIED.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.

Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act, and other methods of public distribution.


Larry L. Burton
Entry Procedures and Carriers Branch

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