OT:RR:CTF:EPDR H336408 ND
Center Director
Industrial and Manufacturing Materials
Center of Excellence and Expertise
U.S. Customs and Border Protection
157 Tradeport Dr.
Atlanta, GA 30354
Attn: Jonathan M. Mercer, Import Specialist
Re: Application for Further Review of Protest Number 550121105721; 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:
The purpose of this decision is to address the application for further review ("AFR") of protest number 550121105721 filed by Best Cheer Stone Inc. d/b/a Alpine Stone Inc. ("Best Cheer"), regarding the liquidation of entry number XXX-XXXX656-5 with the assessment of antidumping duties ("ADD") pursuant to the ADD order in case number A-570-084.
FACTS:
In November of 2018, Best Cheer imported a single entry, number XXX-XXXX656-5, of quartz surface products ("quartz") from the People's Republic of China ("China"). Best Cheer's broker submitted U.S. Customs and Border Protection ("CBP") Form 3461 on November 15, 2018, electing November 14, 2018, as the entry date. CBP Form 3461 also indicates that the merchandise was imported at the Port of Los Angeles for immediate transportation to the Port of Dallas, i.e., the port of entry. The entry summary (CBP Form 7501) similarly identifies the Port of Dallas as the port of entry.
According to the Automated Commercial Environment ("ACE"), CBP's official system of record, the merchandise arrived at the Port of Los Angeles on November 16, 2018. The merchandise was subsequently transported to the Port of Dallas, where it arrived and was released from CBP custody on November 24, 2018. Best Cheers did not deposit any ADD upon entry at the Port of Dallas.
On November 20, 2018, the U.S. Department of Commerce ("Commerce") published its preliminary determination of sales at less than fair value, requiring cash deposits on imported quartz from China entered for consumption on or after November 20, 2018. See Certain Quartz Surface Products from the People's Republic of China: Preliminary Determination of Sales at Less Than Fair Value and Postponement of Final Determination, 83 Fed. Reg. 58, 540 (Nov. 20, 2018). Commerce subsequently issued the ADD order for quartz from China in case number A-570-084 ("Order") with a retroactive effective date of November 20, 2018. 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). Best Cheer does not dispute that its entry 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 . . . .
Id.; see also Commerce Message No. 9197303 (July 16, 2019).
On January 25, 2021, CBP issued a Notice of Action (CBP Form 29), informing Best Cheer that its entry was subject to the ADD Order, presumably because it determined that the imported quartz was entered for consumption after the effective date of the Order. CBP subsequently liquidated entry number XXX-XXXX656-5 on February 26, 2021, with the assessment of ADD pursuant to the Order and Commerce's liquidation instructions in Message 0268401, dated September 24, 2020.
On July 29, 2021, Best Cheer filed protest number 550121105721, alleging that CBP erroneously liquidated entry number XXX-XXXX656-5 with the assessment of ADD because its entry was entered for consumption prior to the November 20, 2018, effective date of the Order. Specifically, Best Cheer argues it elected November 14, 2018, as the entry date on CBP Form 3461 and the merchandise actually arrived within the port limits of the Port of Los Angeles on this date, such that November 14, 2018, was the proper date of entry of entry number XXX-XXXX656-5. Best Cheer alleges that because the entry documentation was filed without an entry summary, the time of entry is determined by 19 C.F.R. 141.68(a)(3).
ISSUE:
What is the legal date of entry of entry number XXX-XXXX656-5?
LAW AND ANALYSIS:
As an initial matter, we note that this protest meets the criteria for further review. Specifically, it raises questions of fact regarding date of entry of entry number XXX-XXXX656-5, which has not been ruled upon by the Commissioner of CBP or his designee or by the Customs courts. See 19 C.F.R. 174.24(b). Additionally, we note that protest number 550121105721 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. Best Cheer filed its protest on July 29, 2021, which is within 180 days of the February 26, 2021, liquidation date of entry number XXX-XXXX656-5.
19 U.S.C. 1552 dictates that "[a]ny merchandise . . . . arriving at a port of entry in the United States may be entered for transportation in bond without appraisement to any other port of entry . . . . there to be entered[.]" The applicability of ADD to the merchandise at issue therefore hinges on whether the merchandise was entered for consumption before or after the November 20, 2018, effective date of the ADD Order. See 84 Fed. Reg. 33,053 (July 11, 2019). Best Cheer argues that the proper date of entry is November 14, 2018, i.e., the date on which its broker filed CBP Form 3461, and the merchandise arrived within the port limits of the Port of Los Angeles. Best Cheer's argument is grounded in its interpretation of 19 C.F.R. 141.68(a)(3):
(a) When entry documentation is filed without entry summary. When the entry documentation is filed in proper form without an entry summary, the "time of entry" will be:
. . . .
(3) The time the merchandise arrives within the port limits, if the entry documentation is submitted before arrival, and if requested by the importer on the entry documentation at the time of submission.
Best Cheer argues that because CBP Form 3461 was filed prior to filing an entry summary, 19 C.F.R. 141.68(a)(3) determines the applicable entry date.
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(a)(3), which dictates that merchandise must arrive within port limits for this subsection to apply. This requirement is further emphasized by 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 at issue 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). 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.
Most relevant is HQ H323140 (Nov. 15, 2023), which concerns the same merchandise and ADD Order at issue in this protest. In HQ H323140, quartz from China arrived at the Port of Los Angeles between November 4, 2018, and November 8, 2018. The quartz was then transferred in bond to the Port of Atlanta, where it arrived between November 20, 2018, and November 28, 2018. Between November 12, 2018, and November 16, 2018, the importer submitted entry summaries. The importer argued that the relevant dates of entry occurred between November 12, 2018, and November 16, 2018, i.e., the dates on which the entry summaries were filed after the merchandise arrived at the Port of Los Angeles. However, we determined that the merchandise did not arrive within port limits until it arrived at the Port of Atlanta between November 20, 2018, and November 28, 2018, where it was subsequently entered and unladen for release from CBP custody and delivery per 19 C.F.R. 141.68(e). The entry documentation evidenced that the port of entry and actual destination port was the Port of Atlanta, not the Port of Los Angeles. Accordingly, the earliest possible entry date was the date that the merchandise arrived at the Port of Atlanta, notwithstanding the importer's earlier in time entry summary filing.
Best Cheer asserts that the date of entry of entry number XXX-XXXX656-5 should be determined in accordance with 19 C.F.R. 141.68(a)(3). We agree that this provision is applicable to Best Cheer's entry. However, 19 C.F.R. 141.68(a)(3) explicitly states that the time of entry will be "the time the merchandise arrives within the port limits." 19 C.F.R. 141.68(e) further emphasizes that merchandise must arrive within port limits with the intent to unlade to be considered filed. Thus, we have consistently determined that merchandise cannot be entered until it arrives within the port limits at the port of entry, at which point any applicable ADD would be due. More specifically, in HQ 225111 (Oct. 4, 1994) and HQ H323140, we determined that merchandise that was transferred from one port to the port of entry could not be considered entered for purposes of ADD assessment, and no entry date could be assigned, until the merchandise arrived within the port limits at the port of entry.
Here, the merchandise did not arrive within the port limits of the port of entry until it arrived at the Port of Dallas on November 24, 2018. As we explained in HQ 225111 and HQ H323140, it is immaterial that Best Cheer's broker submitted CBP Form 3461 and requested November 14, 2018, as the entry date because the merchandise was not entered until it arrived at the Port of Dallas. Thus, the merchandise could not be considered entered when it arrived that the Port of Los Angeles as Best Cheer argues, meaning November 24, 2018, was the earliest possible entry for entry number XXX-XXXX656-5. As stated by the express terms of the Order, ADD will be assessed on quartz from China entered for consumption on or after November 20, 2018. See 84 Fed. Reg. 33,053 (July 11, 2019). Accordingly, the legal entry date of entry number XXX-XXXX656-5 is November 24, 2018, the entry is therefore subject to the Order effective November 20, 2018, and was properly liquidated with the assessment of ADD.
HOLDING:
Based on the foregoing, we find that the legal date of entry for entry number XXX-XXXX656-5 was November 24, 2018, i.e., after the imposition of the Order. Accordingly, CBP properly liquidated the entry with the assessment of ADD. This 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 & Trade Facilitation Division