ENT-1-03/ENT-5-01-CO:R:C:E 225410 PH
Mr. Frederick D. Lawrence
District Director of Customs
9 North Grand Avenue
Nogales, Arizona 85621
RE: Date of Entry; Immediate Delivery; Quota; North American
Free Trade Agreement Act (NAFTA); 19 CFR 141.68
Dear Mr. Lawrence:
In your letter of May 6, 1994, you request advice on the
applicability of 19 CFR 141.68 regarding the date of entry to the
importation of eggplant in your district. One of the questions
you raise is whether NAFTA and the implementing statute and
regulations change any of the entry rules for Mexican or Canadian
originating goods. As you can see from a review of the interim
regulations pertaining to NAFTA (T.D. 94-1) and the NAFTA
Implementation Act (Public Law 103-182), the effects of NAFTA and
its implementing statute and regulations are extremely broad.
Therefore, we are not attempting to answer, in this ruling, that
general question. However, in our ruling, we will incorporate
changes effected by NAFTA and its implementing statute and
regulations which affect the specific situation you describe and
the statutes and regulations applicable to that situation.
Our ruling follows.
FACTS:
You state 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).
You state that the general rate of duty for eggplant was
increased on April 1, 1994, but that 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
state 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).
You state that in the middle of March, in anticipation of the
April change in duty, some brokers in your 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.
ISSUES:
(1) In a situation such as that described in the FACTS portion
of this ruling, when merchandise is released under 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?
(2) In the situation described in ISSUE (1), must the
merchandise be entered under the HTSUS tariff rate quota number,
or can the importer enter the merchandise at the lower rate but
still have it be subject to the quota?
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 recently amended by section 633 of title VI of the NAFTA
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--
(1) ...
(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
importation under [19 U.S.C. 1552], 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 [19 U.S.C. 1490], shall be subject to the
rate or rates in effect when the transportation entry was
accepted at the port of original importation ....
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 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 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]").
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, with
estimated duties attached ... or ... [a]n entry summary for
consumption, which shall serve as both the entry and the
entry summary, without estimated duties attached [if ABI
procedures, 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). 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 general
provision in 19 CFR 141.68(a) 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 you describe, merchandise (eggplant) from Mexico
(for purposes of this ruling, we assume that the eggplant
qualifies as a good of Mexico under the terms of NAFTA) was
released by Customs before April 1, 1994, but the entry summary
for the merchandise was filed in April. Under the HTSUS,
eggplant entered during the period from April 1 to June 30,
inclusive, in any year is subject to a tariff-rate quota
(subheadings 0709.30.20, 9906.07.35, 9906.07.36, HTSUS, and U.S.
Note 12 to subchapter VI of chapter 99, HTSUS). 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 summary was filed and since that was in April, the
merchandise is subject to the tariff-rate quota. Since the date
of entry of the merchandise is April, the merchandise must be
entered under the HTSUS tariff provision applicable at that time
(i.e., for eggplant which qualifies as a good of Mexico under the
terms of NAFTA, subheading 0709.30.2000/9906.07.35 or
0709.30.2000/9906.07.36, depending on whether the merchandise is
within the quantitative limits specified in U.S. Note 12 to
subchapter VI of chapter 99).
HOLDINGS:
(1) In a situation such as that described in the FACTS portion
of this ruling, when merchandise is released 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 the date
that the entry summary was filed in proper form, with estimated
duties attached (unless ABI procedures are used, in which case
duties need not be attached).
(2) In the situation described in ISSUE (1), the merchandise
must be entered under the HTSUS tariff provision (for eggplant
entered between April 1 and June 30, inclusive, which qualifies
as a good of Mexico under the terms of NAFTA, subheading
0709.30.2000/9906.07.35, or 0709.30.2000/9906.07.36, depending on
whether the merchandise is within the quantitative limits
specified in U.S. Note 12 to subchapter VI of chapter 99, HTSUS),
applicable at the date of entry (see above).
The Office of Regulations and Rulings will take steps to
make this decision available to Customs personnel via the Customs
Rulings Module in ACS and the public via the Diskette
Subscription Service, Freedom of Information Act and other public
access channels 60 days from the date of this decision.
Sincerely,
John Durant, Director
Commercial Rulings Division