Inter-Maritime Forwarding Co. v. United States

46 Cust. Ct. 106, 192 F. Supp. 631, 1961 Cust. Ct. LEXIS 19

Opinions

Wilson, Judge:

The issue in the case at bar relates to the status of and the proper rate of duty applicable to certain merchandise brought into the Foreign Trade Zone, port of New York, Stapleton, N.Y., which, while held in custody in said zone, was given the status of “Privileged foreign merchandise” (T.D. 53010). Subsequently, the merchandise in question was withdrawn from the Foreign Trade Zone and entered for consumption at the port of New York. A portion of the goods was entered for consumption before the terminating point of a tariff quota established pursuant to. Presidential proclamation with' respect to merchandise of the character here involved, while another portion of the goods was entered for consumption after the tariff quota in question was reached. The ultimate question for decision is whether the rate of duty applicable to the involved merchandise is that in force and effect at the time a status of privileged foreign merchandise was obtained and which was obtained during the life of the quota and while the goods were in custody in the Foreign Trade Zone, or whether the proper rate of duty is predicated upon that which prevailed at the time the involved merchandise was entered for consumption at the port of New York, dependent upon whether said merchandise was entered for consumption before or after the tariff quota established for such goods was reached.

The merchandise in question consists of two bales (Nos. 9522 and 9523) of woven woolen fabrics admittedly subject to classification under paragraph 1109(a) of the Tariff Act of 1930, as amended, and, accordingly, subject to a specific rate of duty of 37% cents per pound and, in addition, an ad valorem duty rate.

A consideration of the present inquiry involves the applicability of the provisions of paragraphs 1108 and 1109(a), as amended by the General Agreement on Tariffs and Trade, T.D. 51802, as follows:

Tariff Act of 1930, paragraph Description of products Rate of duty

1108 Woven fabrics, weighing not more than four ounces per square yard, wholly or in chief value of wool, regardless of value: If the warp is wholly of cotton or other vegetable fiber. Other_ 300 per lb. and 25% ad val. 37)40 per lb. and 25% ad val.

Note: The United States reserves the right to increase the ad valorem part of the rate applicable to any of the fabrics provided for in item 1108 or 1109(a) of this Part to 45 per centum ad valorem on any of such fabrics which are entered in any calendar year in excess of an aggregate quantity by weight of 5 per centum of the average annual production of similar fabrics in the United States during the 3 immediately preceding calendar years.

1109(a) Woven fabrics, weighing more than four ounces per square yard, wholly or in chief value of wool, regardless of value. 37)40 per lb. and 25% ad val.

The specific issue in this case, as will be hereinafter discussed, involves the proper ad valorem rate of duty applicable to the imported goods under the pertinent paragraph, that is, whether the ad valorem rate of 25 per centum or 45 per centum should be imposed upon the merchandise.

All the essential facts in this case have been stipulated between the respective parties. It is agreed that, on March 14, 1958, the involved bales of woven woolen goods were brought into the Foreign Trade Zone at Stapleton, N.Y., in accordance with section 3 of the Foreign-Trade Zones Act (Public Law 397, 73d Congress (48 Stat. 998-1003; 19 U.S.C. §§ 81a-81u), as amended by Public Law 566, 81st Congress, T.D. 52504).

It was further agreed that, in accordance with the reservation attached to paragraphs 1108 and 1109(a) in the trade agreement, T.D. 51802, swpm, a Presidential proclamation, dated September 28, 1956 (T.D. 54212), as amended by a proclamation of March 7, 1958 (T.D. 54550), was issued, under which the President of the United States exercised the right to increase the ad valorem rate of duty on merchandise of the type here involved from 25 per centum ad valorem to 45 per centum ad valorem, in the event said merchandise was entered or withdrawn from warehouse for consumption in any calendar year following December 31, 1957, in a quantity in excess of a quota fixed by the President of the United States. Pursuant to said proclamation, as amended, supra, the President, on March 7, 1958, notified the Secretary of the Treasury that for the calendar year of 1958 the quota for fabrics of the kind here involved would be 14,200,000 pounds (T.D. 54551). It was agreed between the parties that, for the purpose of this litigation, said woven woolen fabrics in bale No. 9522 shall be treated as though they were not charged to or included as a part of the 14,200,000 pounds of quota rate fabrics for the calendar year 1958; and that the woven woolen fabrics in bale No. 9523 were not charged to or included as a part of the 14,200,000 pounds of quota rate fabrics for the said calendar year 1958.

It is further stipulated that, on November 20, 1958, the United States Secretary of the Treasury found that the quota quantity of 14,200,000 pounds of woolen fabrics had been reached on July 1, 1958, at 3:25 p.m., eastern standard time. It is also agreed that, on April 16, 1958, while the woolen fabrics in question were still in the Foreign Trade Zone, hereinbefore referred to, the plaintiff-importer filed with the collector of customs at New York an application to have the involved woolen fabrics taken under supervision and given privileged status, which application was duly executed. On May 19,1958, while said involved merchandise was still in the Foreign Trade Zone at Stapleton, N. Y., the collector of customs liquidated the entry covering said woolen goods and assessed duty thereon at the rate of 45 per centum ad valorem plus 37% cents per pound. On May 20,1958, one bale of fabrics (No. 9522), admittedly not previously taken into United States territory and while the tariff rate quota was “in effect” (i.e., 25 per centum ad valorem and 37% cents per pound), was transferred into customs territory at the port of New York and there entered for consumption and withdrawn, at which time the importer paid to the collector of customs all duties assessed in the liquidation at said liquidated rate of 37% cents per pound and 45 per centum ad valorem, amounting to $159.08. On July 8,1958, the remaining merchandise in bale No. 9523 was transferred into customs territory and entered and thereafter withdrawn, at which time the importer paid the collector all duties assessed in the aforesaid liquidation at said liquidated rate of 37% cents per pound and 45 per centum ad valorem. It was agreed between the parties that said woven woolen fabrics in bale Nos. 9522 and 9523 were not charged to or included as a part of the 14,200,000 pounds of quota rate fabrics for the calendar year 1958. It was also agreed that the plaintiff, before filing its application for privileged status for the involved merchandise was advised of the contents of Bureau circular letter, dated March 3, 1958 (reference C.C. 343.3), which reads, in part, as follows:

The question has arisen whether privileged foreign status under section 3 of the Foreign Trade Zones Act (19 U.S.C. 81c, 1st proviso) may be granted for woolen textiles ordinarily subject to the quota provisions of T.D. 54212.

Applications for privileged foreign status for woolen textiles of the type under discussion shall he accepted, but the duties shall be liquidated only at the higher or non-quota rate. If privileged foreign status is granted, the higher rate shall remain applicable to the merchandise if it is transferred to customs territory and entered for consumption at any time in the future.

In order to avoid misunderstanding or legal consequences not contemplated by the importers concerned, no such application for privileged foreign status which is now pending or which is filed in the future shall be processed until the applicant has been informed that the non-quota rate will be used and will be binding upon the merchandise if it is entered in customs territory at any time thereafter. Every such applicant shall be given an opportunity to withdraw his application for privileged foreign status if he so desires.

Finally, it was expressly agreed between the parties that no issue is here raised concerning the compliance with or failure to comply with any regulation of the Secretary of the Treasury with respect to the transfer and entry of this merchandise.

From the foregoing recital of facts, it may be observed that the privileged foreign merchandise here involved was assessed at the “non” quota rates of 45 per centum ad valorem plus 37% cents per pound, whether or not it was “entered” during the life of the 1958 quota; and that status as “Privileged foreign merchandise” was obtained during the life of the quota here under consideration and at a time when the 25 per centum ad valorem plus 37% cents per pound rates were “in effect.”

The sole question here involved is one of law. To resolve the issue before use requires an interpretation of the statutes, Presidential proclamations, and departmental regulations applicable to the situation. Furthermore, the real heart of the question is whether the same rule of interpretation applies to what we shall call “quota merchandise” as is applicable to nonquota importations.

The plaintiff argues with some degree of persuasiveness that the language of section 3 of the Foreign-Trade Zones Act is mandatory and that the collector must assess duty upon all privileged goods according to the provisions of that statute at the prevailing rate of duty at the time the application for status is made and accepted.

Said section 3, as amended by Public Law 566, 64 Stat. 246, reads as follows:

Seo. 3. Foreign and domestic merchandise of every description, except such as is prohibited by law, may, without being subject to the customs laws of the United States, except as otherwise provided in this Act, be brought into a zone and may be stored, sold, exhibited, broken up, repacked, assembled, distributed, sorted, graded, cleaned, mixed with foreign or domestic merchandise, or otherwise manipulated, or be manufactured except as otherwise provided in this Act, and be exported, destroyed, or sent into customs territory of the United States therefrom, in the original package or otherwise; but when foreign merchandise is so sent from a zone into customs territory of the United States it shall be subject to the laws and regulations of the United States affecting imported merchandise : Provided, That whenever the privilege shall be requested and there has been no manipulation or manufacture effecting a change in tariff classification, the collector of customs shall take under supervision any lot or part of a lot of foreign merchandise in a zone, cause it to be appraised and taxes determined and duties liquidated thereon.

The plaintiff emphasizes that portion of the foregoing statute, which states:

* * * Provided, That whenever the privilege shall be requested and there has been no manipulation or manufacture effecting a change in tariff classification, the collector of customs shall take under supervision any lot or part of a lot of foreign merchandise in a zone, cause it to be appraised and taxes determined and duties liquidated thereon.

In connection with said section 3 of the Foreign-Trade Zones Act, the plaintiff cites the following regulation of the Customs Eegulations of 1943, as amended, T.D. 53010, which reads as follows:

[See. 30.6(f)]. Privileged foreign merchandise shall be subject to appraisement and tariff classification according to its condition and quantity, and to the rates of duty and tax in force, on the date of the filing with the collector, in complete and proper form for approval, of the request on zone Form B for privileged foreign status and the zone customs entry which is required to accompany * * *

It may be further observed that subdivision (&) of said section 30.6 provided in part as follows:

(5) Merchandise within the purview of the first proviso to section 3 of the act, as amended, shall be given status as privileged foreign merchandise on proper application. * * * Upon acceptance of the entry, the collector shall cause the merchandise to be appraised and taxes determined and duties liquidated thereon promptly. The taxes to be determined are those of the same nature as are indicated in the liquidation of entries of imported merchandise in customs territory.

There is no question according to the stipulation that, on April 16, 1958, when the application for privileged status for the goods at bar was filed with the collector, the quota on such merchandise had not yet been filled, and the applicable rate of duty on such woolen fabrics then entered into United States customs territory was 25 per centum ad valorem plus 37% cents per pound. It is also clear that no reference is made in section 3 of the Foreign-Trade Zones Act, or regulation 30.6 (/), supra relative to quota merchandise. Neither is there any question but that paragraphs 1108 and 1109(a) of the Tariff Act of 1930, as modified by the General Agreement on Tariffs and Trade, T.D. 51802, reduced the ad valorem rate of duty on woven fabrics to 25 per centum. It must also be conceded that, under the trade agreement, the right was reversed to the United States of America acting through its President “to increase the ad valorem part of the rate applicable to any of the fabrics provided for in item 1108 or 1109(a),” supra, to 45 per centum ad valorem on any of such fabrics subject to the relevant quota provisions.

The Government apparently agrees that “the Foreign Trade Zone Act contemplates freezing an existing single rate of duty for privileged merchandise against future unforeseen changes in that rate by statute or otherwise (unless the provision of law changing the rate includes a specific statement that the change in rate shall prevail over the foreign zone rate) ” (Government brief, page 10). The Government maintains, however, that the quota established for woolen fabrics does not provide for a single rate of duty, but, rather, provides for a dual rate, dependent upon the factual situation at the time when the woolen fabrics are entered for consumption. It, accordingly, contends that the rate of duty applicable herein does not depend upon the existence of merchandise in the Foreign Trade Zone with privilege status, but rather upon the time when the merchandise subject to the quota provisions is entered or withdrawn for consumption.

The importer argues that the reservation in paragraph 1108 of the Tariff Act of 1930, as modified by the General Agreement on Tariffs and Trade, and the Presidential proclamations cannot alter the express provisions of section 3 of the Foreign-Trade Zones Act. It is further contended that merchandise in the foreign trade zone is not entered and is not chargeable against any quota, and that the 45 per centum rate was not in effect when the bales were liquidated. The importer, in its brief, further contends that long-continued practice on the part of the customs service bears out the plaintiff’s contention and that legislative history shows that the duty applicable at the time privilege is applied for remains constant and must be the duty assessed at the time the goods are entered in United States customs territory.

The defendant contends that the merchandise was properly assessed at the 45 per centum ad valorem rate, maintaining that 45 per centum under the provisions of paragraph 1109(a) of the Tariff Act of 1930 was the applicable ad valorem rate, unless the merchandise was entered for consumption prior to the fulfillment of the quota for such merchandise. The Government also argues that the administrative procedure followed by the collector of customs is based on the theory that the woolen textile proclamation of the President in effect provides for two rates of duty, the lower or quota rate being applicable under certain conditions, and the higher rate to be -applied when such conditions are not met.

It is obvious that a practical difficulty confronts the Government on the application of the provisions of section 3 of the Foreign-Trade Zones Act. If the contentions of the plaintiff are upheld, then importers are in a position to rush such quantities of quota merchandise into the privileged zone as they desire prior to the actual filling of the quota on merchandise entered into the customs territory, and then withdraw the privileged merchandise in untold quantities after the quota has been filled.

It appears to the court that, in construing section 3 of the Foreign-Trade Zones Act, it must be read in connection with the foreign trade agreement here involved and with the reservation applicable to merchandise such as here imported, together with the customs departmental regulations and published instructions. Viewed from that angle, it appears that the plaintiff-importer clearly had in mind ignoring the quota limitations on woolen fabrics by entering its merchandise into the privileged zone before the quota had been reached and bringing it into the customs territory later at the lower rate after the quota had been passed. This fact really appears from the pretrial conferences in this case.

If section 3 of the Foreign-Trade Zones Act is considered in the light of the trade agreement with the reservation, departmental regulations, and the departmental letter, the proper interpretation, in our opinion, would be that the impact of the trade agreement with its reservations and the departmental regulations on said section 3 is to modify the latter to the extent that it is not arbitrarily controlling as to the quota goods in question, specifically in the determination of the proper rate of duty applicable to the involved merchandise.

As heretofore noted, Presidential Proclamation No. 3160, dated September 28, 1956 (91 Treas. Dec. 351, T.D. 54212), issued pursuant to the “note” contained in paragraph 1108 of the Tariff Act of 1930, as amended, supra, establishing a quota on woolen fabrics such as here under consideration, and Presidential Proclamation No. 3225, dated March 7, 1958 (93 Treas. Dec. 95, T.D. 54550), amending proclamation Ho. 3160, supra, together with the President’s letter of notification, dated March 7, 1958 (93 Treas. Dec. 97, T.D. 54551), specifying the quantity of woolen textiles subject to the quota rate in 1958, all provided that the quota rate shall be applicable only to woolen textiles “entered, or withdrawn from warehouse, for consumption” up to the specified quantity. At the time application under section 3 of the Foreign-Trade Zones Act (48 Stat. 998), as amended by Public Law 566, 81st Congress, chapter 296 of the laws of 1950 (64 Stat. 246), for privileged status of the involved merchandise in the foreign trade zone was made and granted, the applicable ad valorem rate of duty for the fabrics in question was 45 per centum ad valorem unless, in accordance with the provisions of the reservation contained in paragraph 1108 of the tariff act, as amended, supra, the merchandise was entered for consumption prior to the fulfillment of the quota for such merchandise. Here, when privileged status for the merchandise was obtained,- the importer could not have received benefit of the lower quota rate, no entry of the goods for consumption having been made. The “condition” entitling the goods to the lower rate of duty, namely, entry of the merchandise for consumption so as to bring the involved goods within the concession granted as to a lower rate of duty for quota merchandise, had not been met, the importer exercising an option to place the goods in the trade zone and obtain privileged status. Concededly, application for privileged status is not an entry for consumption. Merchandise given privileged status in the foreign trade zone may never be brought into the customs territory of the United States.

The collector in the case at bar liquidated the involved merchandise at the ad valorem rate of 45 per centum, which was the only rate at which he could properly liquidate these goods. The privileged status was granted at the higher rate, thus guaranteeing the importer against unforeseen future increases in duty while such goods remained in the trade zone, while at the same time protecting Government revenue on such merchandise not entered for consumption so as to obtain the benefit of the quota concession.

The importer argues that a fixed rate of duty attaches to privileged merchandise. The Government, as noted, also is apparently in agreement that a fixed rate of duty does attach to ordinary merchandise given the status of privileged goods. However, the quota established for woven woolen fabrics provided not for a single rate of duty, as in the case of ordinary merchandise, but set up a dual rate of duty dependent upon the status of the merchandise when such woolen fabrics were entered for consumption, and the applicable rate for the involved merchandise was not dependent upon the mere fact that the goods were in the foreign trade zone with privileged status.

Counsel for the plaintiff, in its brief, contends that the action of the collector in here relying upon the “wool quota reservation” contained in paragraph 1108 of the tariff act, as amended, supra, and assessing duty upon the involved merchandise at the higher ad va-lorem rate of 45 per centum was “improper, illegal, null and void.” The basis for this contention is that the Foreign-Trade Zones Act, having been passed by Congress, is the “supreme law of the land” and that the wool quota reservation is merely part of an agreement made by the President with several foreign countries, thus maintaining, in effect, that the Foreign-Trade Zones Act takes precedence and is absolutely controlling in the determination of the proper rate of duty applicable to the merchandise under consideration. We are not in agreement with such a construction of the applicability of the Foreign-Trade Zones Act and the aforesaid wool quota reservation. Our appellate court has recently held that the Trade Agreements Act of 1934, under which the General Agreement on Tariffs and Trade was negotiated and promulgated, was a proper delegation of congressional power to the President. Star-Kist Foods, Inc. v. United States (Bruno Scheidt, Inc., Party in Interest), 47 C.C.P.A. (Customs) 52, C.A.D. 728, decided December 15,1959. Accordingly, the Trade Agreements Act of 1934 and the trade agreements made pursuant thereto, specifically here the General Agreement on Tariffs and Trade, are a part of the supreme law of the land. As such, their provisions are pertinent in the determination of the proper rate of duty to be applied to the goods at bar.

For the reasons heretofore advanced, we are of the opinion and hold that the merchandise here involved is properly dutiable under paragraph 1109(a) of the Tariff Act of 1930, as amended by the General Agreement on Tariffs and Trade, T.D. 51802, as woven woolen fabrics at the rate of 37% cents per pound and 45 per centum ad valorem, as assessed.

The protest herein is overruled.

Judgment will be entered accordingly.