H307771

HQ H307771 November 2, 2023 OT:RR:CTF:EPDR H307771 ND CATEGORY: Entry 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 s

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 fil