• Type : Entry • HTSUS :
  •  Revoked by:   114067   

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