Application for Further Review of Protest No. 0901-9810-0383; Rochester Aluminum Smelting Canada, Ltd.

HQ 561346 June 11, 1999 MAR-05 RR:CR:SM 561346 BLS CATEGORY: Marking Port Director 111 West Huron Street Buffalo, New York 14202 RE: Application for Further Review of Protest No. 0901-9810-0383; Rochester Aluminum Smelting Canada, Ltd. Dear Sir: This is in reference to the above-captioned protest, timely filed by Rochester Aluminum Smelting Canada, Ltd. The issue concerns the country of origin of certain imported silicon metal. FACTS: The merchandise was imported from Canada through the port of Buffalo under cover of eight consumption entries during the period April 4, 1997 through May 29, 1997, with invoices for Customs purposes showing "China" as the country of origin. The protestant (as exporter) signed the invoices certifying as to the correctness of the information declared. The CF 7501 filed with each entry shows "multi" for the country of origin of the merchandise, which is described as “Other Silicon.” (In this regard, protestant states that the material is "scrap silicon mixed in with aluminum and non-metallic scrap.") As China was declared to be the country of origin of the silicon, anti-dumping duties were assessed. The protestant states that at the time the metal was shipped, it had no knowledge of the origin of the silicon, but incorrectly assumed that China was the country of origin. While protestant now claims that the country of origin is Canada, it states that specific invoices are not available to support its origin claim as the product was purchased at a bankruptcy proceeding from Aluminum Reduction Company ("ARCO"). However, protestant now submits the following evidence in support of its claim: 1) A fax dated August 28, 1997 from SKW Canada to protestant, in response to the latter’s request, stating that it had no files available with regard to business dealings with ARCO, as such transactions last occurred in May 1990. However, in a subsequent fax dated September 3, 1997, SKW states that “After further reviewing our records we - 2 - can confirm that during the period January - May 1990, SKW Canada sold Aluminum Reduction 364 MT of silicon metal." SKW also notes that "We would assume that SKW Canada Inc. was not the only supplier of silicon metal to Aluminum Reduction, but obviously it is beyond our control to state whether Aluminum Reduction has also purchased silicon metal from elsewhere." 2) A letter dated January 14, 1998, from Jim Miller, the former purchasing manager of ARCO, stating that two lots of silicon metal were on site when the plant closed, purchased from SKW Canada. Mr. Miller states that both lots were of Canadian origin. ISSUE: Whether, based on the evidence, the port’s determination that the country of origin of the silicon metal is China was erroneous. LAW AND ANALYSIS: Section 304 of the Tariff Act of 1930, as amended (19 U.S.C. 1304), provides that unless excepted, every article of foreign origin imported into the U.S. shall be marked in a conspicuous place as legibly, indelibly, and permanently as the nature of the article (or its container) will permit, in such a manner as to indicate to the ultimate purchaser in the U.S. the English name of the country of origin of the article. Protestant entered the silicon material showing China as the country of origin. As anti-dumping duties were assessed upon liquidation, protestant now asserts that the merchandise was of Canadian origin. In either case, invoices from a foreign vendor have not been submitted, as protestant claims that the material was obtained from a bankrupt company it had purchased, and such records were not available. Protestant’s evidence in support of the claim that the silicon metal is of Canadian origin consists of statements of representatives of SKW Canada and ARCO that SKW had sold ARCO a quantity of silicon metal in 1990. According to the former employee of ARCO, two lots of the metal were on site when protestant purchased the bankrupt company. However, no invoices or similar documentation have been submitted to show that SKW sold ARCO the 364 MT of silicon metal and that the material was of Canadian origin, nor has protestant submitted samples for laboratory analysis, which might establish the origin of the material. In addition, protestant has failed to explain why the material was not consumed but remained in ARCO’s possession for a period of approximately seven years. - 3 - Based on the evidence, we find that protestant has failed to establish that the merchandise is of Canadian origin and that the port director’s determination that the country of origin of the silicon metal is China was erroneous. HOLDING: As the protestant has failed to establish that the country of origin of the silicon metal is Canada, the port’s determination at the time of liquidation of the subject entries that the country of origin of the imported good is China stands. Accordingly, you are directed to deny the protest. In accordance with Section 3(A)(11)(b) of Customs Directive 099 3550065, dated August 4, 1993, Subject: Revised Protest Directive, this decision should be mailed by your office to the Protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels. Sincerely, John Durant, Director Commercial Rulings Division