ENT-1-07-CO:R:C:E 225111 SR
Assistant Area Director
Western Great Lakes Area
Minneapolis, Minnesota 55401
RE: Protest 3501-93-100265; 19 CFR 141.68; 19 CFR 141.69(b); 19
CFR 142.22; 19 U.S.C. 1315(a)(2); 19 U.S.C. 1448(b); 19 U.S.C.
1673e(b); time of entry; antidumping duties; immediate
transportation.
Dear Sir or Madam:
The above-referenced protest was forwarded to our office on
Application for Further Review of Protest No. 3501-93-100265,
dated June 9, 1993. We have considered the facts and the issue
raised; our decision follows.
FACTS:
Toyota Tsusho America, Inc. (Toyota), imported silicon metal
from China. On January 23, 1991, the merchandise was entered for
immediate transportation from Los Angeles. The goods arrived in
Minneapolis on February 2, 1991. The importer submitted a
Customs Form (CF) 3461 entry to Minneapolis Customs on February
6, 1991. Customs ordered a part of the shipment to be examined
at a Centralized Examination Station on February 6, 1991. The
goods were examined on February 20, 1991. While a Customs
inspector authorized release on February 20, 1991, the Assistant
Area Director (Inspection and Control) cancelled that
authorization on the same day and ordered the shipment to be
held. The goods were seized by Customs on February 22, 1991,
with receipts being issued to the custodians in possession; that
is, the carrier who delivered the shipment to Minneapolis, and to
the Centralized Examination Station. The merchandise was
authorized for release on March 18, 1991. The entry form (CF
3461) shows that Customs finally authorized release on that same
date. The CF 7501 is dated March 26, 1991, and shows an entry
date of March 18, 1991.
A Notice of Preliminary Determination of possible
antidumping duty liability was published on February 5, 1991 (56
FR 4596). It applied to entries of silicon metal from China made
on or after February 5, 1991.
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Under 19 CFR 141.68(a)(2) an importer may request the time
of entry to be the time the entry documentation is filed if the
request is made on the entry documentation at the time of filing
and the merchandise has already arrived. Copies of the Entry/
Immediate Delivery Request (CF 3461) supplied by the protestant
as well as those in the Customs File show that there was no
elected entry date made under section 141.68(a)(2). There is no
evidence to show that the provisions of 19 CFR 141.68(a)(3) were
requested. Under section 141.68(a)(3), the importer may request
the time of entry to be the time the merchandise arrives within
the port limits, if requested on the entry documentation and
submitted before arrival. Consequently, the date of release, as
set in 19 CFR 141.68(a)(1), controls. Under section
141.68(a)(1), when entry documentation is filed without an entry
summary the time of entry is the time the Customs officer
authorized the release of the merchandise.
The documentary evidence shows that the date of entry was
March 18, 1991, although the protestant asserts that the
merchandise should be considered as entered on January 23, 1991,
the date of the immediate transportation. There is no evidence
to show a date of entry before February 5, 1991.
ISSUE:
Whether the merchandise at issue was "entered" on the date
of immediate transportation which is prior to the date on which
antidumping duties became effective on importations of silicon
metal.
LAW AND ANALYSIS:
Initially, we note that the protest has been timely filed
and is a protestable issue pursuant to 19 U.S.C. 1514.
The relevant statutes are 19 U.S.C. 1315(a) and 19 U.S.C.
1673e(b). The relevant language in 19 U.S.C. 1315(a) provides as
follows:
(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 appropriate customs
officer in the form and manner prescribed by regulations of
the Secretary of the Treasury, except that --
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* * * * *
(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 section 1552 of this title,
if entered for consumption at the port designated by
the consignee, or his agent, in such transportation
entry without having been taken into custody of the
appropriate customs officer under section 1490 of this
title, shall be subject to the rate of rates in effect
when the transportation entry was accepted at the port
of original importation;
* * * * *
(Emphasis added)
The above language was added by the Customs Simplification
Act of 1953 (Act of August 8, 1953, Ch. 397, Sec. 3(a), 67 Stat
508). The purpose of the provision was to add certainty to the
application of duty to counter a lack of uniformity perceived in
a series of court cases. S. Rpt. 632 on HR 5877, July 24, 1953,
reprinted in 1953 U.S. Code and Administrative News 2283, 2287.
The legislative reports cited the case of Mussman & Schafer, Inc.
v. U.S., 27 Cust. Ct. 180 (1951), affd. 40 CCPA 108 (1953).
While there was an immediate transportation entry involved, both
the plaintiff and the Government focused on the activity in the
port of destination. The court held that because duties did not
accrue until arrival in the port of entry there could be no entry
for consumption until after arrival. The court also held that
goods which had arrived in the inland port of entry but were not
released until the date that a tariff change went into effect,
were subject to that tariff change.
In an earlier case National Machinery Co. v. U.S., 1 Cust.
Ct. 45 (1938) the court overruled the contention of the plaintiff
that goods entered under an immediate transportation entry were
not subject to duty until actually released from Customs custody.
The 1953 amendment provided goods such as these which were not
subject to a tariff rate or quantitative quota and if not taken
into custody under 19 U.S.C. 1490, were subject to the rates in
effect when the original transportation entry was filed.
Section 1315 provides uniformity, however, by its very
language, 19 U.S.C. 1315 was further qualified by the
introductory clause "except as otherwise specially provided for .
. ." The legislation implementing the antidumping duty order
specifically states when the antidumping rates are applicable.
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The notice in 56 Federal Register 26649 provides as follows:
Based on the affirmative findings of the Department and
the ITC, all unliquidated entries or warehouse withdrawals
of silicon metal from the PRC, made on or after February 5,
1991, will be liable for the possible assessment of
antidumping duties. Further, a cash deposit of estimated
antidumping duties must be made on all such entries, and
withdrawals from warehouse, for consumption made on or after
the date of publication of this antidumping duty order in
the Federal Register.
This order clearly states that it applies to unliquidated
merchandise entered after February 5, 1991.
The imposition of antidumping duties is governed by 19
U.S.C. 1673e(b). Both under the general rule and the special
rule set forth in that statute, the date that the merchandise is
entered for consumption governs. If the qualifying language of
19 U.S.C. 1315 is to have any meaning at all it must act to
insure that goods which have moved under an immediate
transportation entry and were not entered for consumption until
after the issuance of an antidumping duty order are subject to
antidumping duties.
The protestant argues that the date of immediate
transportation is the date of entry under section 1315(a). The
above provisions do not change the date of entry. The provision
specifically states that the date of entry will be used to
determine the rate of duty at the time of entry except for the
named exceptions. The provision does not state that in the
exceptions the date of entry is changed; it states that duty
rates in effect at a time other than the time of entry will
apply. The protestant makes the same arguments about the
language of 19 CFR 141.68 and 141.69. The language of these two
regulations mirrors the language of 19 U.S.C. 1315.
The language of 19 U.S.C. 1315(a)(2) states that the date
the rates of duty apply is the date the transportation entry was
accepted at the port of original importation, if entered for
consumption at the port designated by the consignee. In this
case the merchandise was not entered for consumption at the port
designated by the consignee until March 18, 1991. On March 18,
1991, the merchandise was released. Under 19 CFR 141.68(a)(1),
when entry documentation is filed without an entry summary the
time of entry is the time the Customs officer authorized the
release of the merchandise. The fact that the importer filed the
CF 7501 on March 26, 1991, further supports an entry date of
March 18, 1991. Under 19 CFR 142.12(b) a CF 7501 must be filed
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within 10 working days after the time of entry. The importer
also secured a bond that is dated March 18, 1991.
The protestant states that "rate or rates in effect" (as
quoted above) is not limited to the standard rates of duty. It
claims that antidumping duties are "another form of duty" and
therefore should be included in the "rate or rates". The
protestant states as proof the fact that 19 U.S.C. 1673i, before
it was repealed, states that "The antidumping duty imposed by
section 1673 of this title shall be treated in all respects as a
normal customs duty for the purpose of any law relating to the
drawback of customs duties." (Emphasis added) This shows the
opposite. It shows that duties other than classification duties
are not considered to be included under standard rates of duties
and therefore it was necessary to specifically provide by statute
that they be treated as such. This statute only provides that
they be treated the same as normal customs duties for purposes of
drawback.
HOLDING:
This protest is denied. The merchandise at issue was
entered on March 18, 1991, the date the Customs Form 3461 was
filed. As stated in the anti-dumping order, anti-dumping duties
are in effect for all unliquidated entries of silicon metal from
the People's Republic of China after February 5, 1991.
Therefore, the merchandise at issue is subject to anti-dumping
duties.
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 this decision
must be accomplished prior to the mailing of the decision. Sixty
days from the date of this 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 to
the public via the Diskette Subscription Service, Lexis, Freedom
of Information Act and other public access channels.
Sincerely,
John Durant, Director
Commercial Rulings Division