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HQ 115289





June 1, 2001

ENT-5-01-RR:IT:EC 115289 GG

CATEGORY: ENTRY

Ms. Sara Gradilla
R.L. Jones Customhouse Brokers, Inc.
P.O. Box 488
San Luis, Arizona 85349

RE: Special Permit for Immediate Delivery; Use of a Transportation Entry following Release under a Special Permit; 19 CFR §142.22(b)(3).

Dear Ms. Gradilla:

This is in response to your ruling request, dated February 15, 2001, in which you ask a question about the special permit for immediate delivery procedure.

FACTS:

Merchandise is imported into the port of San Luis, and is released under a special permit for immediate delivery. The shipment may consist of fresh fruits and vegetables, or may be made up of another class of merchandise. You state that in the past importers of all classes of merchandise had been allowed to change the special permit to either an entry for immediate exportation (“I.E.”) or an entry for transportation and exportation (“T&E”). The goods would then be exported, usually on the same or on the following day. Now, however, Customs restricts such changes to shipments of fresh fruits and vegetables. You ask for a clarification of the Customs Regulations on this matter.

ISSUE:

Under what circumstances may an importer file a transportation entry following the release of merchandise under the special permit for immediate delivery procedure?

LAW AND ANALSYIS:

Section 448(b) of the Tariff Act of 1930, as amended (19 U.S.C. §1448(b)) authorizes the Secretary of the Treasury to provide by regulation for the issuance of special permits for immediate delivery for perishable and other articles, the immediate delivery of which is necessary. The implementing regulations are found in Subpart C of Part 142 of the Customs regulations (19 CFR Part 142). An importer makes application for release under the immediate delivery procedure by filing a CF 3461. Once released, the goods are deemed to remain in Customs custody until one of the following types of documents is timely filed:

An entry summary for consumption, with estimated duties attached; an entry summary for consumption, without estimated attached, if entry/entry summary information and a valid scheduled statement date have been successfully received via ABI; an entry summary for warehouse; or an entry summary for entry temporarily under bond; A withdrawal for consumption, with estimated duties attached; An entry for transportation and exportation, immediate transportation without appraisement (“I.T.”), or direct exportation; or An application to destroy.

Section 142.22(b)(3) of the Customs regulations specifically restricts the use of transportation entries in connection with merchandise released under the immediate delivery procedure to three circumstances. The first of these is when the released merchandise is later found to be prohibited. Section 142.28 of the Customs regulations gives the importer the options of destroying prohibited merchandise or exporting it under an I.E. or a T&E. The second circumstance in which the filing of a transportation entry would be appropriate is when the merchandise released for immediate delivery consists of fresh fruits and vegetables arriving from Canada or Mexico. Section 142.21(b)(3) of the Customs regulations allows fresh fruits or vegetables, following their examination at the importer’s premises, to be either entered for consumption or transported in bond under an I.T. or a T&E. Finally, importers may export under bond perishable absolute quota merchandise whose quota fills subsequent to release but prior to the filing of the entry summary (19 CFR §142.21(e)(2)).

Treasury Decision (“T.D.”) 81-260 supports the position that the use of transportation entries with respect to merchandise released under the special permit for immediate delivery procedure is restricted to the three circumstances outlined above. T.D. 81-260 was the final rule document implementing changes to various Customs regulations, including those relating to immediate delivery. In its analysis of comments received from the public, Customs stated that:

Transportation entries may be used only with respect to the release of fresh fruits and vegetables under section 142.21(b) and absolute quota merchandise under section 142.21(e). . . In a related matter, section 142.28 provides for the use of an entry for exportation, or for transportation and exportation, or an application to destroy merchandise released and later found to be prohibited. . . The NPRM proposed to amend section 142.22(b)(3) to provide that the transportation entries shall be filed only in the circumstances under sections 142.21(b) and (e)(2), and to provide that an entry for exportation, or for transportation and exportation, shall be filed in the circumstance under section 142.28. . . Except for one clarifying change, the amendments are being adopted as proposed.

Clearly, the use of transportation entries for goods released under a special permit for immediate delivery is restricted to shipments of prohibited merchandise, of fresh fruits and vegetables arriving from Canada or Mexico, and of perishable absolute quota merchandise whose quota has closed.

HOLDING:

An importer may only file a transportation entry for merchandise released under a special permit for immediate delivery if the merchandise is found to be prohibited, or if it consists of fresh fruits and vegetables arriving from Canada or Mexico, or if it is perishable absolute quota merchandise whose quota has closed subsequent to release but prior to entry summary filing.

Sincerely,

Larry L. Burton
Chief

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