ENT-5-01/1-03/1-07:RR:IT:EC 226322 AJS
Port Director of Customs
U.S. Customs Service
Commercial Operations
198 West Service Road
Champlain, NY 12919
RE: Protest 0712-95-100534; tariff-rate quota; time of entry; 19
U.S.C. 1315; 19 CFR 141.68(d); 19 CFR 132.1(d); 19 CFR 132.11(a);
HQ 225410.
Dear Sir:
This is our decision in protest 0712-95-100534, dated June
12, 1995, concerning NAFTA duty rates.
FACTS:
Protest is made against the assessment of duty charged at
the 1994 North American Free Trade Agreement (NAFTA) tariff-rate
quota. The protestant asserts that Customs erred in demanding
payment of duties at the 1994 rate of duty on a tariff-rate quota
entry of apparel goods from Canada to the United States. The
protestant also asserts that the 1995 NAFTA tariff-rate quota
rate of duty is applicable and the status of the quota should be
determined based on date of release.
The entry summary was filed on January 13, 1995. The
subject merchandise was exported from Canada under a Certificate
of Eligibility for a Tariff Preference Level (TPL) on December
30, 1994. Customs computer records indicate that the merchandise
from the subject entry was also released under a special permit
for immediate delivery on December 30. The subject merchandise
was classified under either subheadings 6204.39.30, 6206.40.30,
6204.69.25, 6204.59.30, 6211.43.00, 6211.49.00 and the special
statistical reporting numbers 9999.00.51 or 9999.00.50,
Harmonized Tariff Schedule of the United States (HTSUS), for
apparel goods imported from Canada under the terms of Additional
U.S. note 3 to section XI of the HTSUS.
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ISSUE:
When quota-class merchandise is released under the immediate
delivery procedure at the end of a tariff-rate quota period but
the entry summary is subsequently filed at the beginning of a new
tariff rate quota period, what is the time of entry. More
specifically, what is the proper date for determining the
applicable tariff-rate quota of the subject merchandise.
LAW AND ANALYSIS:
Initially, we note that the subject protest was timely filed
pursuant to 19 U.S.C. 1514(c)(3)(A). The notice of liquidation
as to which protest is made was April 28, 1995, and the
date of this protest was June 12, 1995. We also note that the
liquidation of an entry is protestable pursuant to 19 U.S.C.
1514(a)(5).
The effective rates of duty for merchandise imported into
the United States are provided for in 19 U.S.C. 1315. That
statute, as recently amended by section 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 Custom Service by written,
electronic or such other means as the Secretary by regulation
shall prescribe . . .
The Customs Regulations issued under this statute and/or
pertinent to the issues under consideration are set forth, in
part, below:
Under 19 CFR 141.69, "[t]he rates of duty applicable to
merchandise shall be the rates in effect at the time of entry,
as specified in section 141.68, except [in cases not pertinent in
this case] . . ."
Section 141.68, referred to above, provides the time of
entry for merchandise imported
into the United States. Subsection (a) of section 141.68
provides the general rule for establishing the time of entry
when entry documentation is filed without an entry summary
and subsection (b) of section 141.68 provides the rule for
establishing the time of entry when an entry summary serves
as both the entry documentation and entry summary. Subsection
(c) specifically provides for merchandise released under the
immediate delivery
procedure (the time of entry is the time the entry summary
is filed in the proper form, with estimated duties attached).
Subsection (d) specifically provides for the time of entry for quota-class merchandise (i.e., "[t]he time of entry for
quota-class merchandise shall be the
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time of presentation of the entry summary or withdrawal for
consumption in proper form, with estimated duties attached or,
if the entry/entry summary information and a valid scheduled
statement date . . . have been successfully received by Customs
via [ABI], without estimated duties attached, as provided in
[19 CFR 132.11a]").
Under 19 CFR 132.1(d), "presentation" is defined for
purposes of the Customs Regulations pertaining to quota as
"the delivery in proper form to the appropriate Customs
officer of . . . [a]n entry summary for consumption, which shall
serve as both the entry and the entry summary, without
estimated duties attached [if ABI procedure, see above, are
used] or . . . [a] withdrawal for consumption with estimated
duties attached." The time of presentation of an entry/entry
summary for quota purposes is the time of delivery in proper
form of the above-described documents (i.e., the documents listed
in the definition of "presentation") (see 19 CFR 132.11a).
Section 132.11(a) states that quota priority and status are
determined as of the time of presentation of the entry summary
for consumption, or withdrawal for consumption, in proper form
in accordance with section 132.1(d). Under 19 CFR 132.1(e),
"quota-class merchandise" is defined as "any imported merchandise subject to limitations under an absolute or a tariff-rate quota."
In interpreting these provisions, we are guided by the rule
of interpretation that a general rule will not be held to apply
to a matter specifically dealt with in another part of the same
provision (Ginsberg & Sons, Inc. v. Popkin, 285 U.S. 204, 208
(1932); Green v. Bock Laundry Machine Co., 490 U.S. 504, 524
(1989). In this case, in 19 CFR 141.68(d), there is a specific
rule pertaining to quota-class merchandise (we note that such
merchandise includes merchandise subject to limitations under a
tariff-rate quota as well as an absolute quota (19 CFR 132.1(e)).
Under section 141.68(d), the date of entry for quota-class
merchandise is the time of presentation of the entry summary or
withdrawal for consumption in proper form with estimated duties
attached (unless ABI procedures are used, in which case estimated
duties need not be attached). As the more specific provision,
this provision prevails over the more general provisions in
paragraphs (b) (i.e., when entry summary serves as entry and
entry summary at the time of release) and (c) (i.e., when
merchandise is released under the immediate delivery procedure)
of section 141.68 when the merchandise entered is quota-class
merchandise.
We note that this interpretation is consistent with the
Customs Regulations relating to quota (19 CFR Part 132), which
treat the time of presentation as the time of presentation of the
entry/entry summary in proper form, with estimated duties
attached (see 19 CFR 132.1(d) and 132.11a, described above).
(See also, in this regard, T.D. 78-228).
In the situation under protest, merchandise (apparel goods)
from Canada (for purpose of this ruling, we assume that the
apparel goods qualify as a good of Canada under the terms of
NAFTA) was released from Customs custody on December 30, 1994,
but the entry summary was not filed until January 13, 1995.
Moreover, since the goods were released under the immediate
delivery procedure, there was no entry until the CF 7501 was
filed with estimated duties. See 19 U.S.C. 1448(b), 19 CFR
141.68(c) and Godchaux-Henderson Sugar Co. v. U.S., 496 F.Supp
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1326, 85 Cust. Ct. 68, 74 (1980). Under the HTSUS, apparel goods
entered in 1994 were subject to a tariff-rate quota which
permitted a specified quantity of merchandise to be entered or
withdrawn for consumption at a reduced duty rate during a
specified period (subheadings
6204.39.30, 6206.40.30, 6204.69.25, 6204.59.30, 6211.43.00,
6211.49.00, 9999.00.50, 9999.00.51, HTSUS, and Additional U.S.
Note 3(a) and (f), Section XI, HTSUS). As stated previously,
section 141.68(d) of the Customs Regulations specifically
provides, in pertinent part, that the date of entry for quota-class merchandise is the time of presentation of the entry
summary in proper form, with estimated duties attached (unless
ABI procedures are used, in which case duties need not be
attached). Therefore, the date of entry for this merchandise is
the date the entry and entry summary were filed and since this
was on January 13, 1995, the merchandise is subject to the 1995
rate of duty. Since the date of entry of the merchandise is in
January of 1995, the merchandise must be entered under the HTSUS
tariff provision applicable at that time (i.e., for apparel goods
which qualify as a good of Canada under the terms of NAFTA,
subheadings 9999.00.50 and 9999.00.51, HTSUS, depending on
whether the merchandise is within the quantitative limits
specified in U.S. Note 3(f) to section XI). As also stated
previously, section 132.11(a) requires quota status and priority
to be determined at the time of presentation of the entry summary
for consumption in proper form. Therefore, the date for
determining whether the specified quantity of merchandise for the
tariff-rate quota is filled is also January 13, 1995 (i.e., the
date of presentation of the entry summary), and not on December
30, 1994 (i.e., the date of immediate release). See also HQ
225410 (September 20, 1994) for a similar discussion of this
issue.
HOLDING:
The protest is granted. The time of entry for determining
the applicable tariff-rate quota of the subject merchandise is
the time of presentation of the entry summary (i.e., January 13,
1995).
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, the Freedom of Information Act and other
public access channels.
Sincerely,
Director,
International Trade Compliance Division