HQ 0223759 - Transportation Entry; Prematurely Landed Cargo; Special Manifest; 19 U.S.C. 1315; 19 U.S.C. 1552; 19 CFR 4.34(a); 19 CFR 18.10a - United States International Trade Commision Rulings

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HQ 223759

March 11, 1992

TRA-7-CO:R:C:E 223759 PH

CATEGORY: ENTRY

Mr. William E. Vajda
Daniel F. Young, Inc.
17 Battery Place North
New York, New York 10004

RE: Transportation Entry; Prematurely Landed Cargo; Special Manifest; 19 U.S.C. 1315; 19 U.S.C. 1552; 19 CFR 4.34(a); 19 CFR 18.10a

Dear Mr. Vajda:

In your letter of October 7, 1991, to the attention of the Carrier Rulings Branch, you requested a ruling on the interpretation of 19 CFR 4.34(a) as it applies to prematurely landed cargo. Your letter has been forwarded to this Division for direct response. Our ruling follows.

FACTS:

You state that on September 30, 1991, a vessel arrived at the port of New York with cargo manifested for New York and Norfolk, Virginia. The vessel was cleared and departed for Norfolk on October 1, 1991. After departure from New York, it was discovered that two containers manifested for Norfolk had been prematurely landed in New York.

Because one of the containers prematurely landed in New York was on a through bill of lading to Baltimore, it was decided to forgo the option of lading the container on the next available vessel owned or chartered by the owner of the importing vessel (see 19 CFR 4.34(a)) and, instead, transport the container in bond to Baltimore. In Baltimore it was intended that the importer would make the appropriate entry. You state that you were advised that, pursuant to 19 CFR 4.34(a) and 19 CFR 18.10a, the prematurely landed container would be required to be physically moved to the manifested port of discharge (Norfolk) before being transported to Baltimore.

ISSUE:

May merchandise which is prematurely landed from an importing vessel be transported under an entry for immediate transportation to a port other than the port of original destination?

LAW AND ANALYSIS:

Prematurely landed cargo is cargo arriving in the United States which is unladed from the importing carrier at a United States port which the vessel visits before visiting the port for which the cargo is manifested. For example, if a vessel arriving from foreign lands cargo manifested for Norfolk at New York before the vessels proceeds to Norfolk, that cargo would be prematurely landed cargo. The premature landing of cargo may result in penalties for manifest violations under 19 U.S.C. 1584 (see 19 CFR 4.12). This ruling does not address the applicabil- ity of penalties as a result of the premature landing of cargo.

Section 4.34(a) of the Customs Regulations (19 CFR 4.34(a)) provides special procedures for cargo which was prematurely landed from a vessel and erroneously left behind by the importing vessel. Under these procedures, if permitted by the district director, the cargo may be transported to the original port of destination by the next available vessel owned or chartered by the owner of the importing vessel, provided that the importing vessel actually entered the original port of destination of the cargo. If this alternative is not taken, the cargo is required to be appropriately entered at the port of premature landing, forwarded in bond, or sent to general order as unclaimed. If the cargo is entered at the port of premature landing or forwarded in bond from that port, the representatives of the importing vessel are required to file at the port of premature landing a Cargo Declaration in duplicate, the original of which the district director retains and the duplicate of which the district director forwards to the originally intended port of discharge.

Section 18.10a of the Customs Regulations (19 CFR 18.10a) provides procedures for a special manifest. Under this provision, merchandise for which no other type of bonded movement is appropriate ("e.g., prematurely discharged or over[-]carried merchandise and other such types of movement whereby the normal transportation in bond procedures are not applicable") may be shipped in bond from the port of unlading "to the destination shown on the importing carrier's manifest (manifested port)" when authorized by Customs. Under paragraph (b) of this provision, written application is to be made to the district director where the merchandise is being held for permission to transport the merchandise under a special manifest to the manifested port.

Section 18.10a was added to the Customs Regulations by Treasury Decision (T.D.) 54544 (1958). The provision was amended by T.D. 83-218. As is made clear by the background to the latter T.D. (see, Notice of Proposed Rulemaking published in the Federal Register on January 25, 1983 (48 F.R. 3379), Legal Determination 3550-06, ruling 711164, dated October 18, 1979), the intent of this provision was to provide a procedure under which merchandise covered by the procedure could be included in a consumption entry already filed at the manifested port and subject to the rates of duty applicable in that consumption entry. This is explicitly stated in T.D. 83-218 (see, under SUMMARY, "[t]he use of these manifest procedures ... allows the importer or carrier to include the returned merchandise in the original entry summary previously filed at the manifested port and obtain the rate of duty applicable to that entry"; see also, second paragraph under SUPPLEMENTARY INFORMATION, Background).

Clearly, if the special manifest procedures in section 18.10a are used, the merchandise must be actually transported to the original port of destination (i.e., the "manifested port"), as explicitly provided in section 18.10a (see above). However, merchandise which is prematurely landed is not required to be subject to the special manifest procedures in section 18.10a. Such merchandise may be transported to a port other than the "manifested port" under the usual procedures for immediate transportation (see 19 U.S.C. 1552; 19 CFR Part 18, particularly sections 18.11 and 18.12). If the merchandise is so transported, it may not be entered for consumption on the consumption entry filed at the manifested port for the merchandise which is not prematurely landed, as would be the case under section 18.10a. Instead, the merchandise would be required to be entered on a separate consumption entry and, assuming that no quantitative or tariff-rate quota was applicable, the applicable rates of duty would be those effective when the transportation entry was accepted at the port of original importation (i.e., the port of premature landing) (see 19 U.S.C. 1315(a)(2) 19 CFR 141.69(b)). This is explicitly so provided in T.D. 83-218 and the ruling cited in that T.D. (ruling 711164, cited above).

If it is elected to transport prematurely landed merchandise under an entry for immediate transportation, the representatives of the importing vessel would be required to file at the port of premature landing a Cargo Declaration which the district director at that port handles in accordance with 19 CFR 4.34(a). Also, the usual procedures for transportation in bond would be applicable to the movement (see 19 CFR part 18, particularly sections 18.11 and 18.12).

HOLDINGS:

(1) Merchandise which is prematurely landed from an importing vessel may be transported under an entry for immediate transportation to a port other than the port of original destination, under the procedures and conditions described in the LAW AND ANALYSIS section of this ruling.

(2) Merchandise which is prematurely landed from an importing vessel and which is transported under the special manifest procedures provided for in 19 CFR 18.10a must be transported to the port of original destination (i.e., the "manifested port").

(The premature landing of cargo may result in penalties for manifesting violations under 19 U.S.C. 1584 (see 19 CFR 4.12). This ruling does not address the applicability of such penalties.)

Sincerely,

John Durant, Director

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