ENT-1-03/ENT-5-01/QUO-1-RR:IT:EC 114067 CC
Port Director of Customs
9 North Grand Avenue
Nogales, Arizona 85621
RE: Revocation of HQ 225410; Date of Entry; 19 CFR 141.68;
Tariff Rate Quota
Dear Sir or Madam:
Headquarters Ruling (HQ) 225410, dated September 20, 1994,
was issued in response to your request for advice concerning the
date of entry for produce released prior to the opening of a
quota period. You used as an example the importation of eggplant
in your port. We found in that decision that when the
merchandise was released in a time period when it was not under
any quota restrictions, and 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). Therefore, the eggplant was found to be subject to quota.
We have reviewed HQ 225410 and believe it is incorrect.
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 on October 8,
1997, in the CUSTOMS BULLETIN, Volume 31, Number 41.
FACTS:
It was stated in your request that on the Mexican /United
States border all produce is normally released under the
immediate delivery procedures. Before implementation of NAFTA,
when a vegetable or fruit changed from a lower duty rate to a
higher duty rate, the broker would request that for a week to 10
days before the change, the particular product be released under
the entry procedures in 19 CFR 141.68(a).
The general rate of duty for eggplant was increased on April
1, 1994, but under NAFTA eggplant also went from a non-quota to a
tariff rate quota (citing subheadings 0709.30.4000, 0709.30.2000,
9906.07.35, and 9906.07.36, Harmonized Tariff Schedule of the
United States (HTSUS)). You stated that all eggplant entered
after April 1 is considered to be subject to a tariff rate quota
and reported as such but, since the quota is not an absolute one,
eggplant may be released through an immediate delivery or entry
procedures in 19 CFR 141.68(a).
In the middle of March, in anticipation of the April change
in duty, some brokers in your (then) district asked that for the
last week in March all of their eggplant releases be released
under 19 CFR 141.68(a). Eggplant subject to such requests was
released in March, and the broker filed the entry summary in
April with a March date of entry and a free rate of duty.
ISSUE:
When merchandise is released without filing the entry
summary, pursuant to 19 CFR 141.68(a), in a time period when
the merchandise is not under 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:
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, provides, in pertinent part, the following:
(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--
(1) ...
(2) ...
(3) any article for which duties may, under
section 1505 of this title, be paid at a time later
than the time of making entry shall be subject to the
rate or rates in effect at the time of entry.
19 U.S.C. 1505(a) provides, in pertinent part, "[u]nless
merchandise is entered for warehouse or transportation, or under
bond, the importer of record shall deposit with the Customs
Service at the time of making entry or at such later time as the
Secretary may prescribe by regulation, the amount of duties and
fees estimated to be payable thereon....
Customs Regulations issued pursuant to, or that are relevant
to, the above statutes, are set forth, in part, below. 19 CFR
141.69 provides, "[t]he rates of duty applicable to merchandise
shall be the rates in effect at the time of entry, as specified
in 141.68, except [in cases not pertinent in this case]..."
As stated in HQ 225410, 19 CFR 141.68 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 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 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]").
19 CFR 142.12 provides the following:
(b) If the importer is not required to file the
entry summary documentation at the time of entry under
the provisions of 142.13, or if he does not elect to
do so, the entry summary documentation shall be filed,
with estimated duties attached, within 10 working days
after the time of entry.
In HQ 225410 we stated, "[i]n 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." We found that because
141.68(d) specifically applies to the date of entry for quota-class merchandise, it applied to the factual situation presented.
Consequently, we concluded that in application of 141.68(d),
the date of entry for the eggplant was the date of presentation:
the date entry summary was filed with estimated duties attached
(unless ABI procedures are used).
After reconsideration of that decision, we believe it is
incorrect. Section 141.68(d) equates the date of entry for
quota-class merchandise as the time of presentation.
Presentation is only applicable to quota-class merchandise. The
time of presentation is the delivery to Customs in proper form of
the entry summary with estimated duties attached (unless ABI
procedures are used). The time of presentation is important
because it determines quota-status, and becomes particularly
important when a quota becomes nearly filled.
Thus, 19 CFR 141.68(d) applies only to quota class
merchandise and serves to reiterate what the time of presentation
is for quota-class merchandise. To determine that 141.68(d)
applies, it must first be determined that the merchandise in
question is subject to quota. To determine whether merchandise
is subject to quota, it must be determined what is the date of
entry for the merchandise, and what quota restraints apply at
that time.
As stated above, 19 CFR 141.68(a) applies to a situation
in which entry documentation is filed without entry summary.
Depending on the particular situation, 19 CFR 141.68(a)
provides the date of entry is the time (1) Customs authorizes
release of the merchandise, (2) the entry documentation is filed,
or (3) the time the merchandise arrives in the port limits.
Entry summary, with estimated duties attached, is required to be
filed within 10 working days of the date of entry. Absent any
applicable law or regulation that states the date of entry is the
date the entry summary is filed for a class of merchandise that
becomes subject to quota after it is released with entry
documentation having been filed, and the date of entry is prior
to the opening of the quota period pursuant to 19 CFR
141.68(a), then 19 CFR 141.68(a) must apply. In this
situation, section 141.68(d) does not apply because the
merchandise is not considered quota-class merchandise.
Consequently, for the example of the importation of
eggplant, the date of entry would be in March when the entry
documentation was filed and the eggplant was released, pursuant
to section 141.68(a). The date the entry summary was filed, in
April, would not serve as the date of entry. Thus, the eggplants
should not have been subject to quota since that class of
merchandise did not have any quota constraints until April 1.
Since duties are determined on the date of entry, the applicable
subheadings would be those that applied to the eggplant in March.
HOLDING:
When merchandise is released without filing the entry
summary, pursuant to 19 CFR 141.68(a), in a time period when
the merchandise is not under 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
141.68(a). The merchandise would not be subject to quota, and
the dutiable rate would be that applicable at the date of entry
as provided by 19 CFR 141.68(a).
HQ 225410 is revoked.
In accordance with 19 U.S.C. 1625(c)(1), this ruling will
become effective 60 days after its publication in the CUSTOMS
BULLETIN. Publication of rulings or decisions pursuant to 19
U.S.C. 1625(c)(1) does not constitute a change of practice or
position in accordance with section 177.10(c)(1) of the Customs
Regulations (19 CFR 177.10(c)(1)).
Sincerely,
Acting Director,
International Trade Compliance Division