OT:RR:CTF:EPDR H307771 ND
Center Director
Base Metals
Center of Excellence and Expertise
U.S. Customs and Border Protection
510 S. Canal Street, Room 300
Chicago, IL 60607
Attn: Anne L. Pomeroy, Import Specialist
Re: Application for Further Review of Protest Number 390119101517; Section 232; Time of Entry; 19 C.F.R. § 141.68; Arrival Date
Dear Center Director:
The purpose of this decision is to address the application for further review (“AFR”) of protest number 390119101517 filed on May 8, 2019, by Essar Steel Algoma Inc. (“Essar”) regarding the assessment of duties pursuant to Section 232 of the Trade Expansion Act of 1962, as amended (19 U.S.C. § 1862) (“Section 232”).
FACTS:
Essar imported three entries of steel from Canada in 2018: entry numbers XXX-XXXX170-5, XXX-XXXX482-3, and XXX-XXXX424-5. There is no dispute that Essar’s entries would be subject to the Section 232 duties imposed by the U.S. Department of Commerce (“Commerce”) if entered for consumption on or after the effective date of the duties, i.e., June 1, 2018. See Presidential Proclamation 9759 (May 31, 2018). This proclamation rendered all steel from Canada entered for consumption on or after June 1, 2018, as subject to a 25% ad valorem duty pursuant to Section 232. Id.
According to the Automated Commercial Environment (“ACE”), U.S. Customs and Border Protection’s (“CBP”) system of record, the timeline of events is as follows. For entry numbers XXX-XXXX170-5 and XXX-XXXX482-3, Essar filed and ACE accepted entry summaries on May 4, 2018, which is also the cargo release date. Essar attempted to resubmit the entry summaries on June 5, 2018, on which a second entry and cargo release date were assigned. CBP rejected the entry summary on June 6, 2018, for failure to pay Section 232 duties. Regarding entry number XXX-XXXX424-5, Essar filed and ACE accepted an entry summary on May 15, 2018, which is also the cargo release date. Essar attempted to resubmit the entry summary on June 5, 2018, on which a second entry and cargo release date were assigned. CBP similarly rejected the entry summary on June 6, 2018, for failure to pay Section 232 duties.
Two of the entry summaries filed by Essar, for entry numbers XXX-XXXX170-5 and XXX-XXXX482-3, identify May 4, 2018, as the export and import date, and May 6, 2018, as the entry date. The entry summary for entry number XXX-XXXX424-5 identifies May 9, 2018, as the export and import date, and May 15, 2018, as the entry date. As part of its protest submission, Essar has also provided two additional documents. First, a document titled “ACE Entry/Immediate Delivery” that indicates immediate delivery was requested for all three entries, identifies May 4, 2018, as the arrival and entry date for entry numbers XXX-XXXX170-5 and XXX-XXXX482-3, and identifies May 9, 2018, as the arrival and entry date for entry number XXX-XXXX424-5. Second, a document titled “Vessel Entrance or Clearance Statement” (CBP Form 1300) indicates CBP approved a request for clearance of the vessel used to import the subject merchandise on May 7, 2018, with an anticipated departure from the Port of Chicago on June 9, 2018. Essar further notes that CBP’s Automated Broker Interface (“ABI”) indicates that entry numbers XXX-XXXX170-5 and XXX-XXXX482-3 were initially released on May 6, 2018, while entry number XXX-XXXX424-5 was initially released on May 15, 2018.
According to ACE, the estimated arrival date for all three entries is May 6, 2018, and the date of release is June 5, 2018. ACE lists the bill of lading for each entry, and specifies June 5, 2018, as the actual arrival date recorded by CBP. CBP liquidated Essar’s entries with the assessment of Section 232 duties on November 9, 2018, and November 16, 2018. Essar filed its protest on May 8, 2019, protesting the liquidation of its entries with the assessment of Section 232 duties. Essar contends that the date of entry occurred prior to June 1, 2018, the effective date for the Section 232 duties that would otherwise be applicable to the entries. Essar argues that ACE erroneously rejected the entry summaries and but for this error, the entry dates in ACE would predate June 1, 2018. According to the Port, the merchandise was subject to Section 232 duties because the vessel did not actually arrive until June 5, 2018. The Port does not dispute that the entry summaries were timely and properly filed prior to the June 1, 2018, effective date of the Section 232 duties, but determined that the merchandise did not arrive within port limits with the intent to unlade until after June 1, 2018.
ISSUE:
What are the legal dates of entry of Essar’s entries?
LAW AND ANALYSIS:
As an initial matter, we note that this protest was timely filed. Pursuant to 19 U.S.C. § 1514(c)(3)(A), a party must file a protest within 180 days after the date of liquidation. CBP liquidated the relevant entries on November 9, 2018, and November 16, 2018. Essar filed its protest on May 8, 2019, within 180 days of these liquidations. This protest also meets the criteria for further review. Specifically, it raises questions of law and fact concerning the date of entry for entry numbers XXX-XXXX170-5, XXX-XXXX482-3, and XXX-XXXX424-5, which have not been ruled upon by the Commissioner of CBP or his designee or by the Customs courts. 19 C.F.R. § 174.24(b).
The applicability of Section 232 duties to the merchandise at issue hinges on whether the merchandise was entered for consumption before or after the June 1, 2018, effective date of the Section 232 duties. See Presidential Proclamation 9759 (May 31, 2018). While the exact dates Essar alleges as the dates of entry remain unclear from its protest submission, Essar contends that for each of the three entries, it filed the entry summary by May 15, 2018, and the initial cargo release date in ACE also occurred by May 15, 2018. Essar further contends that each entry of merchandise physically arrived within port limits prior to the June 1, 2018, effective date of the Section 232 duties.
For merchandise imported into the United States by vessel, the date of importation is “the date on which the vessel arrives within the limits of a port in the United States with intent then and there to unlade such merchandise.” 19 C.F.R. § 101.1. An entry for the merchandise must be filed within 15 days of arrival but may be filed in advance of the merchandise arriving. 19 C.F.R. § 142.2(a)-(b)(1). Although the entry may be filed in advance of arrival, pursuant to 19 § C.F.R. § 141.68(e): “Merchandise will not be authorized for release, nor will an entry or an entry summary which serves as both the entry and entry summary be considered filed or presented, until the merchandise has arrived within the port limits with the intent to unlade.” Consequently, the date of entry cannot occur prior to the date of arrival within the limits of a port with the intent to unlade.
CBP has previously addressed the arrival requirement to ascertain the date of entry for merchandise subject to additional duties pursuant a trade remedy measure, in Headquarters Ruling (“HQ”) H121420, dated May 17, 2011. In that case, a Presidential Proclamation authorized additional duties on certain vehicle tires from the People’s Republic of China. The importer had selected a date of entry for such tires which occurred prior to the effective date for the Presidential Proclamation. However, the tires actually arrived after the additional duties had gone into effect. Therefore, CBP determined that the date of entry for the tires was the date of arrival, in accordance with 19 C.F.R. § 141.68(e), and that the tires were subject to the additional duties imposed by the Presidential Proclamation.
In the instant case, the facts surrounding Essar’s entries are similar to those in HQ H121420, with one distinction: Essar applied for immediate delivery for each entry. Pursuant to 19 C.F.R. § 141.68(c), when CBP permits release of merchandise subject to a special permit for immediate delivery, meaning the goods are physically released from CBP custody prior to the filing of an entry summary, the date of the entry shall be the date “the entry summary is filed in proper form, with estimated duties attached.” Essar’s contention that the date the entry summaries were filed for each entry is controlling for ascertaining the date of entry appears to rely on the text of 19 C.F.R. § 141.68(c). However, Essar’s reliance on this text is improper because the text of 19 C.F.R. § 141.68(e) explicitly states that “[m]erchandise will not be authorized for release, nor will an entry or an entry summary . . . . be considered filed or presented, until the merchandise has arrived . . . .” (emphasis added). Consequently, although Essar’s entry summaries were accepted in ACE, they could not legally satisfy the filing requirement under 19 C.F.R. § 141.68(c) unless and until the merchandise actually arrived within port limits with the intent to unlade.
Essar argues that the merchandise arrived within port limits with the intent to unlade prior to the effective date of June 1, 2018, for the applicable of Section 232 duties. To substantiate its claim, Essar provided a document titled “Vessel Entrance or Clearance Statement” (CBP Form 1300) that indicates CBP approved a request for clearance of the vessel used to import the subject merchandise on May 7, 2018, with an anticipated departure from the Port of Chicago on June 9, 2018. This date accords with the May 6, 2018, estimated arrival date for all three entries input into ACE by Essar. See CBP.gov, ACE Business Rules and Process Document (Mar. 2023). However, the actual arrival date transmitted by the ship’s captain into ACE for all three entries, and verified by the Port is June 5, 2018. Id. This date corresponds to the arrival date listed on the three bills of lading provided by Essar. Given that ACE is CBP’s official system of record, and CBP is accorded a presumption of correctness arising from “the presumption of regularity that attaches to Customs’ recordkeeping,” we find that the merchandise within all three of Essar’s entries actually arrived within port limits with the intent to unlade on June 5, 2018. See HQ H304599 (Dec. 11, 2020) (quoting Peg Bandage v. United States, 17 C.I.T. 1337, 1340-1341 (1993)). This presumption of regularity is rebuttable by the party challenging a CBP decision. See 28 U.S.C. § 2639(a)(1); St. Paul Fire & Marine Insurance Co. v. United States, 6 F.3d 763, 768 (Fed. Cir. 1993) (noting that in enacting 28 U.S.C. § 2639(a)(1), Congress intended the courts to presume that Customs decisions are correct and the protesting party bears the burden of proving that the agency’s decisions are unreasonable). Essar has failed to overcome the presumption of regularity by not providing sufficient evidence to prove that the merchandise arrived within port limits with the intent to unlade prior to June 5, 2018, as reflected in ACE. Accordingly, on June 5, 2018, the merchandise arrived, and the requisite entry summary submitted with payment of estimated duties attached could then legally “be considered filed” pursuant 19 C.F.R. § 141.68(c). The merchandise therefore arrived after the June 1, 2018, effective date for the applicable Section 232 duties.
HOLDING:
The legal entry date of entry numbers XXX-XXXX170-5, XXX-XXXX482-3, and XXX-XXXX424-5 is June 5, 2018, subsequent to the June 1, 2018, effective date for the Section 232 duties imposed on the entered merchandise. Accordingly, CBP properly liquidated Essar’s entries with the assessment of Section 232 duties. The protest should be DENIED in full.
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,
For Yuliya A. Gulis, Director
Commercial and Trade Facilitation Division