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HQ 226322

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August 7, 1996

ENT-5-01/1-03/1-07:RR:IT:EC 226322 AJS

CATEGORY: ENTRY

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.

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.

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
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

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,


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See also:

• Tariff No.: 6204.39.30 - Women's or girls' suit-type jackets and blazers, not knitted or crocheted, of artificial fibers, under 36% by weight of wool
• Tariff No.: 6204.59.30 - Women's or girls' skirts and divided skirts, not knitted or crocheted, of artificial fibers, nesoi
• Tariff No.: 6204.69.25 - Women's or girls' trousers, breeches and shorts, not knitted or crocheted, of artificial fibers, nesoi
• Tariff No.: 6206.40.30 - Women's or girls' blouses and shirts, not knitted or crocheted, of manmade fibers, nesoi
• Tariff No.: 6211.43.00 - Women's or girls' track suits or other garments nesoi, not knitted or crocheted, of man-made fibers
• Tariff No.: 9999.00.50 - Imports from Canada under add US note 3(a) of section XI, of cotton or manmade fiber apparel from frabrics knit or woven outside NAFTA
• Tariff No.: 9999.00.51 - Imports from Canada under add US note 3(a) of section XI, of other cotton or manmade fiber apparel, under such add US note 3(a)