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HQ 225111




October 4, 1994

ENT-1-07-CO:R:C:E 225111 SR

CATEGORY: ENTRY

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.

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 --

(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.

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
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

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