OT:RR:CTF:CPMMA H320198 AJK
Center Director
Base Metals Center of Excellence and Expertise
U.S. Customs and Border Protection
5600 Pearl Street
Rosemont, IL 60018
Attn: Patricia D. Tate, Supervisory Import Specialist
RE: Application for Further Review of Protest No. 3901-20-120810; Retroactive Application of Exclusions from Section 232 Duties
Dear Center Director:
This is in response to the Application for Further Review (AFR) of Protest No. 3901-20-120810, filed on November 10, 2020, on behalf of Provident PLLC (Protestant), concerning U.S. Customs and Border Protection’s (CBP) denial of the Protestant’s claim for exclusions from the additional duties on steel and aluminum under Section 232 of the Trade Expansion Act of 1962 (Section 232 duties).
FACTS:
The subject protest covers four entries of white carbon steel coils in various sizes: (1) Entry No. xxx-xxxx459-8, entered on May 13, 2019; (2) Entry No. xxx-xxxx475-4, entered on May 20, 2019; (3) Entry No. xxx-xxxx570-2, entered on June 24, 2019; and (4) Entry No. xxx-xxxx594-2, entered on July 1, 2019. All four entries were entered under subheading 7211.90.0000, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), and liquidated as entered on May 15, 2020. Prior to the date of the four subject entries, Protestant initially submitted five requests for exclusions from the Section 232 duties on April 10, 2019 (collectively, the April 2019 Exclusion Requests): (1) Exclusion Request No. BIS-2018-0006-145956, concerning a 1095 white carbon steel coil with a width of 34.5–35.5 mm, a thickness of 0.2025–0.2035 mm, and a coil length of 50–500 inches; (2) Exclusion Request No. BIS-2018-0006-145959, concerning a 1095 white carbon steel coil with a width of 34.5–35.5 mm, a thickness of 0.15–0.16 mm, and a coil length of 50–500 inches; (3) Exclusion Request No. BIS-2018-0006-145961, concerning a 1095 white carbon steel coil with a width of 31.5–32.5 mm, a thickness of 0.250–0.260 mm, and a coil length of 50–500 inches; (4) Exclusion Request No. BIS-2018-0006-175295, concerning a 1095 white carbon steel coil with width of 25.0–26.0mm, a thickness of 0.25–0.26 mm, and a coil length of 50–500 inches; and (5) Exclusion Request No. BIS-2018-0006-175296, concerning a 1095 white carbon steel coil with a width of 24.5–25.5 mm, a thickness of 0.2025–0.2035 mm, and a coil length of 50–500 inches. The Department of Commerce (DOC) Bureau of Industry and Security (BIS) approved the April 2019 Exclusion Requests on October 1, 2019.
On September 27, 2019, Protestant submitted five additional requests for exclusions from the Section 232 duties (collectively, the September 2019 Exclusion Requests): (1) Exclusion Request No. 25015, concerning a 1095 white carbon steel coil with a width of 34.5–35.5 mm, a thickness of 0.2025–0.2035 mm, and a coil length of 50–500 inches; (2) Exclusion Request No. 25163, concerning a 1095 white carbon steel coil with a width of 31.5–32.5 mm, a thickness of 0.2025–0.2035 mm, and a coil length 50–500 inches; (3) Exclusion Request No. 25170, concerning a 1095 white carbon steel coil with a width of 29.5–30.5 mm, a thickness of 0.2025–0.2035 mm, and a coil length of 50–500 inches; (4) Exclusion Request No. 25173, concerning a 1095 white carbon steel coil with a width of 34.5–35.5 mm, a thickness of 0.2025–0.2035 mm, and a coil length of 50–500 inches; and (5) Exclusion Request No. 25177, concerning a 1095 white carbon steel coil with a width of 25.0–26.0 mm, a thickness of 0.1520–0.1530 mm, and a coil length of 50–500 inches. BIS granted Exclusion Request No. 25015 on May 8, 2020, and Exclusion Request Nos. 25163, 25170, 25173 and 25177 on May 19, 2020. To claim the approved exclusions from the Section 232 duties, Protestant filed the subject protest on November 10, 2020. In its protest, Protestant contends that the approved exclusions are retroactively applicable to the subject entries and thus, requests a refund of duties. On August 16, 2021, however, CBP denied the protest because the Protestant’s exclusion requests were approved after the subject entries were made. The classification of the merchandise under subheading 7211.90.00, HTSUS, is not in dispute.
ISSUE:
Whether the subject white carbon steel coils in various sizes are properly excluded from the Section 232 duties.
LAW AND ANALYSIS:
Initially, we note that the matter is protestable under 19 U.S.C. § 1514(a)(2), as a decision on the classification and rate and amount of duties chargeable. See also 19 C.F.R. § 174.11(b)(2). The protest was timely filed within 180 days of the date of liquidation. See Miscellaneous Trade and Technical Corrections Act of 2004, Pub. L. 108-429, §§ 2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)). Further review of Protest No. 3901-20-120810 is properly accorded pursuant to 19 C.F.R. § 174.24(b) because the decision against which the protest was filed is alleged to involve a question of law or fact that has not previously been ruled upon by CBP or the courts.
In support of its protest, Protestant alleges that its ten exclusion requests were submitted prior to the date of the subject entries, and that all of the approved exclusion requests are applicable to the subject entries. This is incorrect. As outlined above, only five of the ten exclusion requests were filed prior to the subject entries. We find that the BIS Decision Documents for the September 2019 Exclusion Requests incorrectly state “4/10/2019” as the submission date for Exclusion Request No. 25015, and “4/23/2019” as the submission date for Exclusion Request Nos. 25163, 25170, 25173 and 25177. The incorrect dates therein are clerical errors, as evidenced by the submission dates identified in the Exclusion Requests and by the assigned exclusion request numbers. First, each of the electronically submitted September 2019 Exclusion Requests states “9/27/2019” as the submission date. Second, the range of submission dates can be easily identified by the assigned exclusion request numbers. All exclusion requests that were filed on or before June 12, 2019, were submitted on the Federal rulemaking portal (i.e., https://www.regulations.gov) and were automatically assigned a regulations.gov docket number that begins with “BIS-2018-0006.” On June 13, 2019, however, DOC launched a new online portal—232 Exclusions Portal—which replaced the regulations.gov portal, and retired the “BIS-2018-0006” docket number for exclusion requests. Since the launch of the 232 Exclusions Portal, any exclusion requests that are filed on or after June 13, 2019, are submitted on the 232 Exclusions Portal only and are automatically assigned with a unique ID number, which consists of numbers. Accordingly, the exclusion request numbers in the instant case can indicate whether the exclusion requests were submitted before or after the subject entries. In regard to the April 2019 Exclusion Requests, the beginning of each request number—BIS-2018-0006—which is the regulations.gov docket number, denotes that these requests were submitted on or before June 12, 2019. Conversely, the five-digit ID numbers of the September 2019 Exclusion Requests demonstrate that they were submitted on or after June 13, 2019, on the 232 Exclusions Portal, because each exclusion request does not have the regulations.gov docket number. Thus, we find that the September 2019 Exclusion Requests were submitted on September 27, 2019, as stated in the exclusion request forms, and that Protestant incorrectly claims that the submission dates of the September 2019 Exclusion Requests predate the date of the subject entries.
Furthermore, Protestant asserts that its approved exclusion requests are applicable to the protested entries pursuant to the Cargo Systems Messaging Service (CSMS) # 39633923, dated September 3, 2019, which provides guidance on the submission and processing of exclusions from the Section 232 duties. CSMS # 39633923 states that “[d]uty exclusions granted by the DOC are retroactive on imports to the date the request for exclusion was accepted (date received) by the DOC.” On February 7, 2023, CBP issued CSMS # 55014059 and erroneously changed the guidance with respect to the retroactive application of the Section 232 exclusions as follows: “Exclusions granted by DOC are retroactive to the date the request for exclusion was posted for public comment on the 232 Exclusion Portal.” To correct the error, CBP subsequently issued CSMS # 55844950, dated April 10, 2023, which provides that “[e]xclusions granted by DOC are retroactive to the date the request for exclusion was submitted to the 232 Exclusions Portal.” Accordingly, the approved April 2019 Exclusion Requests can be retroactively applied to the subject entries only if the subject entries were entered on or after April 10, 2019, which is the date the request was accepted by the DOC. Similarly, the approved September 2019 Exclusion Requests can be retroactively applied to the subject entries only if the subject entries were entered on or after September 27, 2019.
In the instant case, the subject entries were entered between May 13, 2019, and July 1, 2019. Therefore, the approved April 2019 Exclusion Requests are applicable to the entries, and Protestant is entitled to the corresponding refund of the Section 232 duties. The approved September 2019 Exclusion Requests, however, are not applicable to the subject entries, because they were entered before the September 2019 Exclusion Requests were submitted on the Section 232 Exclusion Portal.
HOLDING:
You are instructed to DENY the protest, except to the extent the Section 232 exclusions of the merchandise as indicated above result in a net duty reduction and partial allowance. In addition, you are instructed to notify the protestant of this decision no later than 60 days from the date of this decision. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to this notification. Sixty days from the date of the decision, the Office of Trade, Regulations and Rulings will make the decision available to CBP personnel and the public on the Customs Rulings Online Search System (CROSS) at https://rulings.cbp.gov/, or other methods of public distribution.
Sincerely,
Yuliya A. Gulis, Director
Commercial and Trade Facilitation Division