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HQ 228274




December 17, 1999

LIQ-4-01-RR:CR:DR
228274 CK

Category: RELIQUIDATION

Port Director of Customs
U.S. Customs Service
Second & Chestnut
Philadelphia, PA 19106

RE: Protest and AFR No. 1101-98-100152; Antidumping duty order A-570-819; ferrosilicon; 19 U.S.C. 1514; 19 CFR part 18

Dear Sir or Madam:

The above-referenced protest was forwarded to this office for further review. We have considered the facts and issues raised, and our decision follows.

FACTS:

Protestant, Washington Mills Electro Minerals Corp., imported ferrosilicon from the People’s Republic of China on entry number 331-xxxx954-7, on December 2, 1996. Protestant entered the merchandise as a consumption entry, and the merchandise was classified as 7202.29.00, HTSUS, with a free rate of duty. However, upon review by the Import Specialist, it was discovered that the merchandise was subject to the antidumping duty case A-570-819, and a cash deposit was required at 137.73%. The entry summary filed by the broker was returned for further information by U.S. Customs Service on January 7, 1997, and a request was made on the broker to change the entry summary to a consumption entry subject to dumping duties, and a cash deposit for the antidumping duty amount was requested.

The Final Determination of Sales at Less than Fair Value: Ferrosilicon from the People’s Republic of China, was published in the Federal Register on January 21, 1993 (58 FR 5358). All manufacturers, producers, and exporters were required to post a bond, or a cash deposit in an amount equal to 137.73%. The Antidumping Duty Order: ferrosilicon from the People’s Republic of China, was published in the Federal Register on March 11, 1993 (58 FR 13448), repeating the requirements of the final determination of January 21, 1993.

On January 15, 1997, Protestant’s broker replied that a “Type 01” consumption entry was incorrectly filed, that instead the merchandise should have been entered as a Transportation and Exportation entry. Protestant states that the merchandise was removed after entry to a warehouse and was marshaled onto trucks for immediate delivery to its mill located in Ontario, Canada.

Since, the additionally requested information was never received for entry number 331-xxxx954-7, the U.S. Customs Service acted on the information it had on March 16, 1998, and the entry was liquidated on August 14, 1998, with antidumping duties of over $165,000.00 owed. Protestant filed this protest on September 21, 1998, protesting the form of entry liquidated by Customs; that the merchandise is outside the scope of the antidumping duty order; and the classification of the merchandise.

On September 21, 1999, the Department of Commerce (DOC) published in the Federal Register (64 FR 51097) a notice of rescission of antidumping duty orders on ferrosilicon from Brazil, Kazakhstan, People’s Republic of China, Russia, Ukraine, and Venezuela, and the termination of administrative review of ferrosilicon from Brazil, People’s Republic of China, and Venezuela, effective September 21, 1999. On August 24, 1999 the International Trade Commission after reconsidering its previous injury determinations, informed the DOC that it had determined that there is no material injury, or threat of material injury. Therefore, the DOC rescinded these orders, terminated the related review, and instructed the U.S. Customs Service to liquidate the entries without assessment of dumping duties. Finally, the notice states that the rescission is effective from the date of original issuance and applies to all unliquidated entries of subject merchandise from the named countries.

Following a meeting held at the U.S. Customs Service headquarters in Washington D.C. between Customs personnel and Protestant, Protestant by letter dated December 1, 1999, narrowed its protest to the rescission of the antidumping duty order, and the cancellation of the bills for antidumping duties, plus interest.

ISSUE:

Should the Protestant’s bill for duties be cancelled, where the liability is based on an antidumping duty order that has been rescinded, effective from the date of the original order?

LAW AND ANALYSIS:

We note initially, that a protest is timely if filed within 90 days of liquidation, and that the liquidation of an entry, and the Customs decision contained therein, are protestable. See, 19 U.S.C. 1514. In this case, Protestant filed the protest well within 90 days of the liquidation, and while the scope of an antidumping duty order is not protestable under section 1514; the Customs decision not to reliquidate consistent with the appropriate liquidation instructions issued by the Department of Commerce is protestable.

In this case, the liquidation of the entry resulted in a bill for duties based on antidumping duty case number A-570-819, plus interest. However, because of the September 21, 1999, notice of rescission of antidumping duty orders on ferrosilicon from Brazil, Kazakhstan, People’s Republic of China, Russia, Ukraine, and Venezuela, and the termination of administrative review of ferrosilicon from Brazil, People’s Republic of China, and Venezuela, effective September 21, 1999, published by the Department of Commerce (DOC) in the Federal Register (64 FR 51097), there are no duties owing under case number A-670-819. Additionally, as a protest was filed under 19 U.S.C. 1514, within 90 days of liquidation, the liquidation was not final, and therefore, entry number 331-xxxx954-7 is within the purview of the rescission order. Therefore, Protestant is not liable for the antidumping duties and interest assessed based on case number A-570-819, since, the order was rescinded, and the protested entry was liquidated, but not yet final, due to the protest filed against the liquidation.

However, as Protestant filed a consumption entry, it is still responsible for Customs duties based on the merchandise classification, and for any applicable merchandise processing fees. Protestant argued that it mistakenly filed a consumption entry, and that it had meant to file a transportation and exportation entry instead. A transportation and exportation entry is one of the entries that may be made for merchandise to be transported in bond. See, 19 CFR 18.10(a)(4). Additionally, transportation and exportation entries are also discussed in 19 CFR 181.20. Generally, an importer must post a bond for the importation of merchandise that will be subject to inland transportation to a port of export; the merchandise will be subject to inspection at the time of entry and export. See, 19 CFR part 18, generally. Additionally, there is no authority in part 18, for a consumption entry to be converted to a transportation and exportation entry. Additionally, while the facts show the entry was made at the Port of Philadelphia, and Protestant has asserted that it exported merchandise to its factory in Ontario, Canada, Protestant has not submitted evidence to support the assertion that the consumption entry was a mistake. Therefore, Protestant is liable for duties assessed on the classification of its merchandise, and any applicable merchandise processing fees due from consumption entry 331-xxxx954-7. However, merchandise classified as 7202.29.00, HTSUS, had a free rate of duty at the time of entry, therefore, Protestant is responsible only for the merchandise processing fee for that merchandise.

HOLDING:

Protestant is not liable for the antidumping duties and interest assessed based on case number A-570-819, since the order was rescinded, before the liquidation became final.

Protestant, who entered its merchandise at the Port of Philadelphia, and then asserted it exported the merchandise to Ontario, Canada, is liable for duties assessed on the classification of its merchandise, and any applicable merchandise processing fees due from consumption entry 331-xxxx954-7. However, merchandise classified as 7202.29.00, HTSUS, had a free rate of duty at the time of entry, therefore, Protestant is responsible only for the merchandise processing fee for that merchandise.

The protest should be ALLOWED in part as set forth above. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.

Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

John Durant, Director
Commercial Rulings Division

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