PRO 2-05
H256930 SMS
OT:RR:CTF:ER
Port Director
U.S. Customs and Border Protection
1 East Bay Street
Savannah, GA 31401
Attn: John Atkinson, Import Specialist
RE: Application for Further Review of Protest Number 1703-14-100053 concerning wooden bedroom furniture from the People’s Republic of China under Antidumping Order A-570-890
Dear Port Director:
The following is our decision regarding the Application for Further Review (“AFR”) of Protest Number 1703-14-100053, filed by Vertex Global, Inc. (“Vertex”) on February 5, 2014, which contests the antidumping rate assessed its entries of wooden bedroom furniture. We regret the delay in our response.
FACTS:
Between January 7, 2011 and February 5, 2011, Vertex made two entries of wooden bedroom furniture, exported by Hong Kong Wanhengtong Nueevder Furniture Manufacturing Co., Ltd. (“HK Wanhengtong”) from the People’s Republic of China (“PRC”) and subject to antidumping order A-570-890. See Notice of Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Wooden Bedroom Furniture From the People’s Republic of China, 70 Fed. Reg. 329 (Jan. 4, 2005). The two entries were entered at the Port of Savannah under the following entry numbers: xxx-xxxx887-8 on January 7, 2011 and xxx-xxxx138-5 on February 5, 2011. Liquidation of these entries was suspended pending further instructions from the U.S. Department of Commerce (“Commerce”).
On January 3, 2012, Commerce published a notice of opportunity to request an administrative review of the wooden bedroom furniture order, for the period of January 1, 2011, through December 31, 2011. Because all requesting parties, including Wanhengtong Nueevder (Furniture) Manufacture Co., Ltd. (“Wanhengtong”) and Dongguan Wanhengtong Industry Co, Ltd. (“Dongguan”) withdrew their respective requests for an administrative review of the entities, Commerce partially rescinded the review. See Wooden Bedroom Furniture From the People’s Republic of China: Partial Rescission of Antidumping Duty Administrative Review and Intent To Rescind, in Part, 77 Fed. Reg. 52311 (Aug. 29, 2012). Subsequently, on October 4, 2012, Commerce issued assessment instructions for wooden bedroom furniture from the PRC for certain exporters, instructing CBP to assess antidumping duties on merchandise covering the period of January 1, 2011 through December 31, 2011, at the cash deposit rate required at the time of entry. See Message No. 2278301 (Oct. 4, 2012). The instructions indicated that the antidumping case number for the exporters Wanhengtong and Dongguan is A-570-890-074, with the company specific rate of 7.24 percent; HK Wanhengtong was not listed as a company assigned a case number under these instructions. Id. Commerce further instructed CBP that for all other shipments of wooden bedroom furniture from the PRC, to collect cash deposits at the current rates. Id.
On December 6, 2012, January 2, 2013, and August 6, 2013, CBP issued Vertex, three Notices of Action, which indicated that the antidumping rates designated on the entries were incorrect for the specific exporter, HK Wanhengtong. CBP further explained that case number, A-570-890-074, which was declared at the time of entry, is specifically assigned to wooden bedroom furniture exported by Wanhengtong or Dongguan. However, as the exporter of record is HK Wanhengtong, which is not assigned a case number, the PRC-wide antidumping rate of 216.01 percent, under case number A-570-890-000 applied. On June 12, 2013, Commerce published its final results of the 2011 antidumping review of wooden bedroom furniture from the PRC. However neither HK Wanhengtong, Wanhengtong, nor Dongguan were included in this review. The separate rates assessed previously by Commerce remained the same, with the exception of six exporters who were removed from the separate rate list. See Wooden Bedroom Furniture From the People’s Republic of China: Final Results of Antidumping Duty Administrative Review; 2011, 78 Fed. Reg. 35249 (June 12, 2013). On July 10, 2013, Commerce issued liquidation instructions for all shipments of wooden bedroom furniture from the PRC, not subject to a separate rate, during the period of January 1, 2011 through December 31, 2011, instructing CBP to assess an antidumping liability equal to the PRC-wide rate of 216.01 percent of the entered value of the merchandise, under A-570-908-000. See Message No. 3191301 (July 10, 2013).
On April 18, 2013, the president of Wanhengtong wrote CBP and stated that HK Wanhengtong and Wanhengtong are the same company. The letter explained “a typing error caused the confusion between the two companies denoted above in that we have been continuously (and erroneously) invoicing . . . by using an incorrect letterhead.” Wanhengtong Response Letter to Notice of Action, Apr. 18, 2013. The shipper/exporter listed on the commercial invoices, packing lists, bill of lading, freight bill, certification of compliance, and the certificate of origin is HK Wanhengtong. On all of the relevant documents, HK Wanhengtong is identified as the shipper. On September 27, 2013, CBP liquidated the entries, in accordance with Message No. 3191301 and assessed an antidumping duty equal to the PRC-wide rate of 216.01 percent. The instant protest was filed on February 5, 2014, seeking reliquidation of these entries under the final results rate assigned to Wanhengtong/Dongguan of 7.24 percent.
Vertex contends that the liquidation of its entries at the PRC-wide rate of 216.01 percent was contrary to Commerce’s instructions, and it seeks reliquidation of the entries at the rate for Wanhengtong/ Dongguan, of 7.24 percent. Vertex also argues that CBP did not liquidate the entries within six-months, after the suspension of liquidation was lifted, under the October 4, 2012 notice. CBP contends that according to Commerce’s instructions, case A-570-890-074 is specific to the exporter being Wanhengtong or Dongguan, and therefore does not apply to HK Wanhengtong. See DOC Inquiry No. 31015 (Nov. 21, 2012). CBP further states that the shipper did not obtain a changed circumstances review. Therefore, Commerce has not made a determination that HK Wanhengtong is the same company as Wanhengtong. Thus, the entries were timely and properly liquidated under the PRC-wide rate, pursuant to the Message No. 3191301, dated July 10, 2013.
ISSUES:
Whether CBP properly assessed the appropriate antidumping duties.
Whether CBP liquidated the entries within the time limits prescribed in 19 U.S.C. § 1504(d).
LAW AND ANALYSIS:
As an initial matter, we note that Vertex timely filed its protest within 180 days from the date of liquidation. See 19 U.S.C. § 1514(c)(3)(A). CBP liquidated protestant’s entries on September 27, 2013, and the protest was filed on February 5, 2014, within 180 days. Under 19 C.F.R. § 174.24, further review shall be accorded a party when the decision against which the protest was filed is alleged to involve questions of law or fact which have not been ruled upon by CBP. See 19 C.F.R. § 174.24(b). We determine Vertex’s protest involves questions of law or fact not previously ruled upon by CBP; specifically, whether CBP followed the proper liquidation instructions of Commerce, i.e., whether Vertex’s entries were timely and properly liquidated under the PRC-wide rate, versus afforded the company specific rate of Wanhengtong/Dongguan. Accordingly, further review is warranted pursuant to 19 C.F.R. §§ 174.24(b), (c), and 174.26(b)(1)(iv).
Whether CBP properly assessed the appropriate antidumping duties.
While both CBP and Commerce play a part in the enforcement of the antidumping laws, their roles are separate and distinct. Pursuant to 19 U.S.C. § 1673, Commerce calculates and determines the antidumping duty rate, Commerce then directs CBP to collect the estimated duties. See 19 U.S.C. § 1673e (a)(1). CBP is required to collect the antidumping duties imposed by Commerce. Id. Generally, assessed antidumping duties properly applied by CBP are not protestable, as “Customs has a merely ministerial role in liquidating antidumping duties.” Mitsubishi Electronics America, Inc. v. United States, 44 F.3d 973, 977 (Fed. Cir. 1994). CBP’s ministerial role is to follow the liquidation instructions and to compute the duty by applying the antidumping duty rate set by Commerce to the appraised value as determined by CBP. However, inasmuch as Vertex protests the liquidation and disputes CBP’s application of Commerce’s liquidation instructions, this matter is protestable. See Xerox Corp. v. United States, 289 F.3d 792 (Fed. Cir. 2002).
An antidumping administrative review may be requested by an interested party, an exporter or producer covered by the antidumping order, or an importer of the subject merchandise. See 19 C.F.R. § 351.213(b)(1)-(3). Reviews must be requested pursuant to section 751 (a)(1) of the Tariff Act of 1930, as amended in accordance with section 351.213 of Commerce’s regulations. Under 19 U.S.C. § 1675(b)(1), Commerce may also conduct a review after receiving information of changed circumstances sufficient to warrant a review of a final affirmative determination that resulted in an antidumping duty order. See 19 C.F.R. § 351.216. If no review is requested, automatic assessment occurs. See 19 C.F.R. § 351.212(c). In this instance, neither Wanhengtong, Dongguan, nor HK Wanhengtong requested an administrative review to obtain a specific company antidumping duty rate, and while, Commerce initiated an administrative review, both Wanhengtong and Dongguan withdrew their respective requests for an administrative review, before a final determination was made. Because none of the interested parties fully underwent an administrative review, HK Wanhengtong, never received their own specific antidumping duty rate, for the period of review at issue.
Established by the relevant documentation, the exporter of the entered merchandise was HK Wanhengtong. Vertex, purchased the wooden bedroom furniture from HK Wanhengtong, on behalf of its consignee, which is evident from the commercial invoices. HK Wanhengtong appeared on the commercial invoices, packing lists, bill of lading, freight bill, certification of compliance, and the certificate of origin. Additionally, a letter from HK Wanhengtong, concerning California shipments being shipped in compliance with California Air Resources Board (“CARB”) regulations, was included in the file. Wanhengtong and Dongguan did not appear on any of the above listed documents. Based on the documentation contained throughout the protest, the exporter of the wooden bedroom furniture was HK Wanhengtong, not Wanhengtong or Dongguan.
As noted above, Commerce is required to determine the rate of antidumping duties to be assessed. CBP’s ministerial role is to follow the liquidation instructions and to compute the duty by applying the antidumping duty rate set by Commerce. Whether or not Wanhengtong is “also known as” HK Wanhengtong is not for CBP to decide, and Commerce did not make that determination for the period of review in which Vertex made the pertinent entries. Accordingly, CBP cannot accept as fact that HK Wanhengtong is the same company as Wanhengtong or Dongguan without specific instructions from Commerce. Because HK Wanhengtong did not undergo a complete administrative review, Commerce has not provided it with a separate rate. Barring an administrative review to obtain a company specific rate, HK Wanhengtong is subject to the PRC-wide rate under A-570-890-000. Therefore, in accordance with Commerce’s instructions, Vertex’s entries of wooden bedroom furniture, made between January 7, 2011 and February 5, 2011 and exported by HK Wanhengtong, were properly liquidated at the PRC-wide rate of 216.01 percent. See Message No. 3191301 (July 10, 2013).
The protestant contends that the names of the exporter, as declared on the entry documents were Wanhengtong and Dongguan, and that the submitted evidence proves that Wanhengtong / Dongguan was the exporter and is eligible for a duty rate of 7.24 percent, pursuant to Message No. 2278301 (Oct. 4, 2012). Protestant submitted the following documents that listed Wanhengtong and Dongguan as the company name: blanket statements of non-reimbursement; a request to Commerce for administrative review of the antidumping duty order for the period of January 1, 2010 through December 31, 2010; response to Commerce’s request for the quantity and values of sales for the period of January 1, 2010 through December 31, 2010; and a company official certification. In an attachment entitled, Format for Reporting Quantity and Value of Sales, the named parties that submitted the total quantity and value of all sales of merchandise shipped into the United States, during the period of January 1, 2010 through December 31, 2010, were listed as: Dongguan, Wanhengtong “also known as” HK Wanhengtong. Vertex also states that the addresses of the companies are the same, including the address on the submissions to Commerce and on the commercial documents submitted with the entries. Vertex indicates that because the administrative review was rescinded for Wanhengtong, Commerce had no reason to change the antidumping rate, name, and number for the company. Vertex ultimately argues that the liquidation of its entries at the PRC-wide rate of 216.01 percent was contrary to Commerce’s instructions; instead, Vertex seeks reliquidation of the entries at the rate for Wanhengtong/ Dongguan, which is 7.24 percent. See Message No. 2278301 (Oct. 4, 2012).
While, Vertex requests that CBP evaluate the evidence and hold that HK Wanhengtong and Wanhengtong/Dongguan are the same company, this is a determination that is made by Commerce, not CBP. Commerce has not made a changed circumstances determination, and HK Wanhengtong and Wanhengtong/Dongguan were not a part of the applicable administrative review, as they withdrew their requests. See Wooden Bedroom Furniture From the People’s Republic of China: Partial Rescission of Antidumping Duty Administrative Review and Intent To Rescind, in Part, 77 Fed. Reg. 52311 (Aug. 29, 2012). Furthermore, upon CBP’s inquiry, Commerce indicated that it has never been requested to determine that HK Wanhengtong is the same company as Wanhengtong. See DOC Inquiry No. 31015 (Nov. 21, 2012). In Message No. 2278301, Commerce instructed CBP to “liquidate all entries for the firms listed in the company-details table appended to the bottom of this message.” Id. However, Commerce’s list of companies did not include HK Wanhengtong; the instructions only directed that the 7.24 percent rate be applied to entries that were exported by Wanhengtong/Dongguan. Accordingly, as Commerce has not instructed CBP to afford HK Wanhengtong a company specific rate or the rate assigned Wanhengtong/Dongguan, Vertex’s entries of wooden bedroom furniture, made between January 7, 2011 and February 5, 2011 and exported by HK Wanhengtong, were properly liquidated at the PRC-wide rate of 216.01 percent. See Message No. 3191301 (July 10, 2013).
Whether CBP liquidated the entries within the time limits prescribed in 19 U.S.C. § 1504(d).
Vertex protests CBP’s liquidation of the subject entries on September 27, 2013. It argues CBP’s liquidation of the entries occurred more than six months after CBP received notification of the lifting of suspension of liquidation. Accordingly, it is necessary to determine whether the entries liquidated by operation of law. Section 1504(d) of Title 19 requires that CBP liquidate entries within six months after receiving notice that a suspension of liquidation of such entries has been removed. 19 U.S.C. § 1504(d). If CBP fails to timely liquidate the entries after receiving notice, the entries are “deemed” liquidated at the rate asserted at the time of entry. Id. See also, Fujitsu Gen. Am., Inc. v. United States, 283 F.3d 1364, 1376 (Fed. Cir. 2002). “In order for a deemed liquidation to occur, (1) the suspension of liquidation that was in place must have been removed; (2) Customs must have received notice of the removal of the suspension; and (3) Customs must not liquidate the entry at issue within six months of receiving such notice.” Id. CBP typically receives the relevant notice in the form of explicit liquidation instructions from Commerce. The courts have also recognized other methods of notice as sufficient, such as publication of a court’s ruling in the Federal Register. Id. at 1382.
Vertex contends that CBP did not liquidate the entries within six-months, after the suspension of liquidation was lifted, under Message No. 2278301, dated October 4, 2012. Vertex asserts that because CBP should have liquidated its entries in accordance with the liquidation instructions issued on October 4, 2012, its September 27, 2013 liquidation was untimely. Thus, Vertex argues that under 19 U.S.C § 1504(d), the entries are deemed liquidated at the rate asserted on the date of entry. In this case, Commerce notified CBP on October 4, 2012, that it rescinded the administrative review of the antidumping duty order on wooden bedroom furniture from the PRC, covering the period of January 1, 2011 through December 31, 2011, “with respect to the firms listed.” See Message No. 2278301 (Oct. 4, 2012). As discussed supra, HK Wanhengtong was not a firm listed in these instructions. Subsequently, Commerce issued liquidation instructions for all shipments exported by PRC-wide entities on July 10, 2013. See Message No. 3191301 (July 10, 2013). As exporter, HK Wanhengtong was not a firm listed in the October 4, 2012, liquidation instructions, and because Commerce has not made a determination that HK Wanhengtong is the same company as Wanhengtong, it does not have a separate rate; accordingly, CBP properly assessed it the PRC-wide rate, subject to the liquidation instructions in Message No. 3191301, dated July 10, 2013. As, CBP liquidated the entries at issue on September 27, 2013, within six-months of the notice from Commerce on July 10, 2013, a deemed liquidation did not occur.
HOLDING:
Consistent with the decision set forth above, we find that Vertex Global Inc.’s entries were properly liquidated at the rate of 216.01 percent, and they did not deem liquidate by operation of law. Accordingly protest 1703-14-100053 should be DENIED.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision to counsel for the protestant, together with the Customs Form 19, 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 International Trade will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division