OT:RR:CTF:EPDR H323140 ND
Center Director
Industrial and Manufacturing Materials
Center of Excellence and Expertise
U.S. Customs and Border Protection
157 Tradeport Dr.
Atlanta, GA 30354-3910
Attn: Randy Rhoades, Import Specialist
Re: Application for Further Review of Protest Number 170421105054; Antidumping Duties; A-570-084; Certain Quartz Surface Products from the People’s Republic of China; 19 U.S.C. § 1315; Time of Entry; 19 C.F.R. § 141.68
Dear Center Director:
This is in response to the Application for Further Review (“AFR”) of protest number 170421105054 filed by Stone Showcase, Inc. (“SS”) on June 11, 2021. SS protests the liquidation of 14 entries on March 3, 2021, with the assessment of antidumping duties (“ADD”) per case number A-570-084. The protest concerns the correct entry date for purposes of determining whether SS’s entries are subject to ADD. This protest is designated as the lead protest and addresses the identical facts, issues, and arguments presented in protest number 170421105149, with regard to the assessment of countervailing duties (“CVD”) on entry number XXX-XXXX210-7.
FACTS:
In November of 2018, SS imported 14 entries of quartz surface products (“quartz”) from the People’s Republic of China (“China”). SS filed the entry summaries (CBP Form 7501) as type 03 consumption entries subject to the countervailing duty (“CVD”) order in case number C-570-085, and deposited CVD but did not deposit any ADD upon entry. Id. However, SS’s counsel states that the correct entry code was type 01 for a consumption entry not subject to ADD or CVD.
U.S. Customs and Border Protection (“CBP”) liquidated these entries on March 3, 2021, with the assessment of ADD pursuant to the ADD order in case number A-570-084 (“Order”). See Certain Quartz Surface Products from the People’s Republic of China: Antidumping and Countervailing Duty Orders, 84 Fed. Reg. 33,053 (July 11, 2019). The Order went into effect on November 20, 2018. Id. CBP determined that all 14 of SS’s entries fell within the scope of the Order because they were entered for consumption after the effective date of the Order.
On June 11, 2021, SS filed a protest on the basis that all 14 entries occurred prior to the effective date of the Order and were therefore not subject to any ADD required to be assessed pursuant to the Order. Concurrently, SS submitted an AFR on the basis that CBP erroneously assessed ADD by relying on the date that the merchandise arrived at the Port of Atlanta to determine the date of entry. SS alleges that the merchandise arrived at the Port of Los Angeles with the intent to unlade at that location and SS filed the entry summaries, such that the entry summaries served as both the entry documentation and entry summaries in accordance with 19 C.F.R. § 141.68(b), prior to the November 20, 2018, effective date of the Order.
On September 28, 2021, the Industrial and Manufacturing Center of Excellence and Expertise (“CEE”) denied the AFR accompanying protest number 170421105054 on the grounds that the issue presented by the protest was decided by HQ 225111 (Oct. 4, 1994). On November 22, 2021, SS submitted a request to set aside the denial of its AFR pursuant to 19 U.S.C. § 1515(c). SS alleged that its protest did involve questions of law or fact not previously adjudicated by CBP, specifically that HQ 225111 was not dispositive for the facts and law under protest and the operative date of entry remained undecided. On January 13, 2022, we agreed with SS and set aside the denial of the AFR on the basis that SS’s protest involved questions of law or fact not previously adjudicated. 19 C.F.R. § 174.24(b).
SS does not dispute that all 14 of its entries would be subject to the Order if entered for consumption on or after the Order’s effective date of November 20, 2018. The ADD order in case number A-570-084 provides:
Antidumping duties will be assessed on unliquidated entries of quartz surface products from China entered, or withdrawn from warehouse, for consumption on or after November 20, 2018 ….
See also U.S. Department of Commerce (“Commerce”) Message No. 9197303 (July 16, 2019). The dispute, and our decision, thus hinges on the legal and operative date of entry for each of SS’ protested entries.
According to the Automated Commercial Environment (“ACE”), CBP’s official system of record, the merchandise arrived at the Port of Los Angeles between November 4, 2018, and November 8, 2018. These dates are reflected as the “arrival date[s]” in ACE. The merchandise was subsequently transported by rail from the Port of Los Angeles to the Port of Atlanta. After the merchandise arrived at the Port of Los Angeles, but prior to its arrival at the Port of Atlanta, SS filed 14 entry summaries. ACE indicates that the entry summaries were filed between November 12, 2018, and November 16, 2018, as indicated in the chart below. ACE further reflects that the merchandise arrived at the Port of Atlanta between November 20, 2018, and November 28, 2018, and that the merchandise was entered for consumption on the dates that the goods arrived at the Port of Atlanta, i.e., between November 20, 2018, and November 28, 2018. The following chart represents the timeline of events for each entry in ACE:
Entry Number
Entry Summary Filed in ACE
Arrival Date
at Port of Atlanta
ACE Release Date
ACE Entry Date
XXX-XXXX396-9
11/12/18
11/23/18
11/23/18
11/23/18
XXX-XXXX395-1
11/15/18
11/23/18
11/23/18
11/23/18
XXX-XXXX394-4
11/15/18
11/20/18
11/20/18
11/20/18
XXX-XXXX393-6
11/12/18
11/20/18
11/20/18
11/20/18
XXX-XXXX392-8
11/12/18
11/23/18
11/23/18
11/23/18
XXX-XXXX391-0
11/15/18
11/28/18
11/28/18
11/28/18
XXX-XXXX390-2
11/15/18
11/20/18
11/20/18
11/20/18
XXX-XXXX389-4
11/15/18
11/20/18
11/20/18
11/20/18
XXX-XXXX388-6
11/15/18
11/20/18
11/20/18
11/20/18
XXX-XXXX387-8
11/15/18
11/20/18
11/20/18
11/20/18
XXX-XXXX223-5
11/15/18
11/21/18
11/21/18
11/21/18
XXX-XXXX222-7
11/15/18
11/21/18
11/21/18
11/21/18
XXX-XXXX221-9
11/16/18
11/21/18
11/21/18
11/21/18
When SS filed each entry summary, SS elected the date on which the merchandise arrived at the Port of Los Angeles as the entry date. Thus, the entry summary filing date in ACE is the date on which the merchandise arrived at the Port of Los Angeles. The entry date identified on each paper version of the entry summary, though, predates the ACE filing date. Moreover, the entry summaries and ACE both identify the Port of Los Angeles as the port of unlading. However, the commercial invoices and packing lists accompanying CBP Form 7501 identify the place of delivery as “Savannah, USA.” The shipping document titled “Arrival Notice/Freight Invoice,” and the bill of lading, identify Atlanta, GA, as the port of delivery. The Entry/Immediate Delivery form (CBP Form 3461) identifies Atlanta, GA, as the port of arrival and intended port of entry.
According to SS, because each of the 14 entries was filed between November 12, 2018, and November 16, 2018, each entry occurred prior to the November 20, 2018, effective date for the Order and therefore none of the entries are subject to the assessment of ADD pursuant to the Order. SS asserts that Los Angeles was the “destination port” for the merchandise such that all of the merchandise was entered and unladen at the Port of Los Angeles. According to the CEE, SS’s entries occurred after the effective date of the Order because they did not arrive at the Port of Atlanta until November 20, 2018, at the earliest, rendering them subject to assessment of the applicable ADD.
ISSUE:
What are the legal dates of entry of Stone Showcase’s quartz surface products?
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 March 3, 2021. SS filed its protest on June 11, 2021, which is within the 180-day deadline. With regard to the AFR, as noted above, pursuant to 19 U.S.C. § 1515(c), we set aside the CEE’s denial of AFR on the basis that SS raised of question of law concerning the appropriate date of entry for the entries under protest, which has not been previously ruled upon.
The applicability of ADD to the merchandise at issue hinges on whether the merchandise was entered for consumption before or after the November 20, 2018, effective date of the ADD order. See Certain Quartz Surface Products from the People’s Republic of China: Antidumping and Countervailing Duty Orders, 84 Fed. Reg. 33,053 (July 11, 2019). SS alleges that the proper dates of entry are the dates on which its broker filed the entry summaries. According to SS, and as reflected on ACE, its broker filed the entry summaries between November 12, 2018, and November 16, 2018, prior to the imposition of the ADD order. SS’s argument is grounded in its interpretation of 19 C.F.R. § 141.68(b):
When entry summary serves as entry and entry summary. When an entry summary serves as both the entry documentation and entry summary, in accordance with § 142.3(b) of this chapter, the time of entry will be the time the entry summary is filed in proper form with estimated duties attached . . . .
SS argues that the entry summaries served as both the entry documentation and entry summaries in accordance with 19 C.F.R. § 141.68(b). SS also argues that because the entry summaries were filed prior to the imposition of the ADD order, its entries were entered prior to, and are not subject to, the ADD order in case A-570-084.
Pursuant to 19 U.S.C. § 1315(a),
(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 . . . . 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 Treasury . . . .
Consequently, the rate applicable to the protested entries is the date on which the entry is filed and estimated duties deposited “[e]xcept as otherwise specially provided for.” Id. Such a provision appears in 19 C.F.R. § 141.68(e), which states that:
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.
Therefore, an entry cannot legally be deemed “filed or presented” until the subject merchandise arrives at the port where it will be unladen and entered.
CBP has previously addressed the date of entry constraints imposed by 19 C.F.R. § 141.68(e). In HQ H121420 (May 17, 2011), we determined that the date of entry for the automobile tires was the date the tires arrived within port limits with the intent to unlade. In that case, a Presidential Proclamation authorized additional duties on certain vehicle tires from China. The importer elected the date of entry as the date of entry summary filing, which was prior to the imposition of the additional duties. However, we held that pursuant to 19 C.F.R. § 141.68(e), the entry date cannot predate the actual arrival of the merchandise within port limits and any entry summaries are not considered filed until the merchandise arrives at the port of unlading. See also Mussman & Schafer, Inc. v. United States, 27 Cust. Ct. 180 (1951); HQ H121420 (May 17, 2011); HQ 225111 (Oct. 4, 1994). Therefore, we determined that because the vessel carrying the automobile tires arrived within the port limits of the port of entry after the effective date of the Presidential Proclamation, the automobile tires were subject to the increased duty rate.
Additionally, in HQ 225111 (Oct. 4, 1994), Customs determined that the time of entry for establishing the proper rate of duty cannot occur until the merchandise actually arrives within the port limits at the port of entry. In that case, a shipment of silicon metal from China was entered on January 23, 1991, for immediate transportation from Los Angeles, CA. The shipment arrived in Minneapolis, MN, on February 2, 1991. The importer filed CBP Form 3461 on February 7, 1991. The goods were ordered examined and subsequently were authorized for release on March 18, 1991. An ADD order on silicon metal took effect on February 5, 1991. The importer argued that the date the shipment first arrived within the U.S. Customs territory, on January 23, 1991, should be the entry date. Customs ruled that because duties did not accrue until arrival at the port of entry, there could be no entry for consumption until after arrival. See also Mussman & Schafer, Inc., 27 Cust. Ct. at 186 (“[G]oods imported . . . . are to be charged with duties according to the law in force when they are entered for consumption; that is when passed over to the control of the importer or owner.”). Therefore, the operative entry date for determining the applicable rates of duty was the date that the entry was accepted at the port of entry for consumption at Minneapolis on March 18, 1991.
In the instant case, both the commercial invoices and packing lists identify the place of delivery as “Savannah, USA.” Additionally, the shipping document titled “Arrival Notice/Freight Invoice” identifies the Port of Delivery and Final Destination as “Atlanta, GA.” CBP Form 3461 also identifies Atlanta as the port of arrival. Lastly, although the bill of lading identifies San Pedro, CA as the port of discharge, it also identifies Atlanta, GA as the place of delivery. Most importantly, the merchandise was physically unladen in Atlanta for release from CBP custody and delivery. Although SS asserted its intent to enter and unlade the imported quartz at the Port of Los Angeles, it failed to submit any corroborating documentation revising the previously filed entry documentation that identifies the Port of Atlanta as the destination port. Consequently, we find that the entry documents, accompanying invoice, and shipping documents clearly establish that the Port of Atlanta was the port of unlading per 19 C.F.R. § 141.68(e), and the entry date for the merchandise cannot predate its arrival within the Atlanta port limits.
According to ACE, the merchandise arrived in Atlanta between November 20, 2018, and November 28, 2018, such that the November 20, 2018, effective date of the Order is the earliest in time possible date that the entry summaries could legally be deemed filed or presented. We thus find that each of SS’s 14 entries was entered on or after the effective date of the Order and are subject to the assessment of ADD pursuant to the Order.
HOLDING:
Based on the foregoing, we find that the entries were properly liquidated with the assessment of ADD in accordance with the November 20, 2018, effective date for the Order. This protest is hereby 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 & Trade Facilitation Division