PRO 2-05
OT:RR:CTF:ER
H262244 ECG
Port Director
Port of Champlain
U.S. Customs and Border Protection
237 West Service Road
Champlain, NY 12919
Attn: Mariann Seymour, Senior Import Specialist
Rebecca Rabideau, Supervisory Import Specialist
Re: Application for Further Review of Protest Number 0712-13-100154; Unassembled Kits of Patient Lifting Devices; Antidumping Duties.
Dear Port Director:
This is in response to the application for further review (“AFR”) of protest number 0712-13-100154 (“protest”) forwarded to our office on November 5, 2013. The protesting party is Arjo, Inc. (“Arjo”), importer of record. This decision is issued in conjunction with HQ H248339, dated May 31, 2016, covering the classification of the imported merchandise and determining that the subject merchandise is classified under 7318.15.50, Harmonized Tariff Schedule of the United States (HTSUS). We apologize for the delay.
FACTS:
Arjo entered 60 entries of incomplete, unassembled kits of patient lifting and mobility devices, containing certain steel threaded rod (“CSTR”) from the People’s Republic of China (“PRC”) between September 29, 2010, and March 20, 2011. Arjo entered the CSTR as a part under heading 9402, HTSUS, as “[m]edical, surgical, dental or veterinary furniture,” along with the rest of the device. However, the Port of Champlain (“Port”) classified the CSTR separately under heading 7318, HTSUS (iron and steel products). The Port further determined that the CSTR was subject to antidumping duties under antidumping duty order A-570-932, covering CSTR from the People’s Republic of China, because the CSTR was separately classified from the unassembled patient lifting device. Subsequently, the Port issued a Customs Form 29 to notify Arjo of the Port’s change in tariff classification from 9402.90.0020, HTSUS, to 7318.15.5056, HTSUS, and that with this change, the entries were subject to antidumping case number A-570-932.
On April 14, 2009, the U.S. Department of Commerce (“Commerce”) issued an antidumping duty order for CSTR from the PRC. The antidumping duty order instructed Customs and Border Protection (“CBP”) to require cash deposits for CSTR produced and exported by Jiaxing Xinyue Standard Part Co., Ltd. (“Jiaxing Xinyue”) equal to the specific weighted-average antidumping duty margin of 55.16%. See Certain Steel Threaded Rod from the People’s Republic of China: Notice of Antidumping Duty Order, 74 Fed. Reg. 17,154, 17,156 (Apr. 14, 2009) (“antidumping duty order”). Commerce calculated the PRC-wide antidumping duty margin at 206.00%. Id.
On May 8, 2012, Commerce published the preliminary results of the second administrative review of the antidumping duty order, covering the period of review (“POR”) April 1, 2010, through March 31, 2011. See Certain Steel Threaded Rod From the People’s Republic of China: Preliminary Results of the Administrative Review, Intent to Rescind, and Rescission, in Part, 77 Fed. Reg. 27,022 (May 8, 2012) (“preliminary results”). In the preliminary results, Commerce instructed CBP to collect cash deposits for Jiaxing Xinyue at the rate “equal to the cash deposit of the estimated antidumping duties required at the time of entry” because review of Jiaxing Xinyue had been rescinded and Jiaxing Xinyue had an established rate of 55.16% from a prior proceeding. See 77 Fed. Reg. at 27,028. Additionally, Commerce set the cash deposit rate for non-PRC exporters of the subject merchandise as the rate applicable to the PRC exporter that supplied that non-PRC exporter. See 77 Fed. Reg. at 27,028-29. Furthermore, Commerce noted it would issue liquidation instructions for the PRC-wide entity after the publication of the final results of the review. See id.
On November 9, 2012, Commerce published the final results of the administrative review of entries of CSTR from the PRC. See Certain Steel Threaded Rod From the People’s Republic of China: Final Results and Final Partial Rescission of Antidumping Duty Administrative Review; 2010-2011, 77 Fed. Reg. 67,332 (Nov. 9, 2012) (“final results”). In the final results, Commerce continued to find that the PRC-wide antidumping duty rate was 206.00%. See 77 Fed. Reg. at 67,334; see also Certain Steel Threaded Rod From the People’s Republic of China: Amended Final Results of Antidumping Duty Administrative Review; 2010-2011, 78 Fed. Reg. 4,389 (Jan. 22, 2013). Additionally, Commerce continued to apply the exporter-specific rate published for the most recent POR for previously investigated or reviewed PRC and non-PRC exporters that were not listed with a separate rate in the second administrative review. See id. (listing separate rates for the second administrative review only for RMB Fasteners Ltd. and IFI & Morgan Ltd., meaning that other previously investigated companies’ rates were equal to the most recently published separate rates established by Commerce). Accordingly, Jiaxing Xinyue’s rate continued to be 55.16% because it was not reviewed in the second administrative review, but had the 55.16% rate established in a prior proceeding. See 77 Fed. Reg. at 27,028.
On February 7, 2013, Commerce sent CBP liquidation instructions for entries exported by the PRC-wide entity during this POR, stating that CBP should assess antidumping duties equal to the PRC-wide rate of 206.00% of the entered value. See Message No. 3038305 (Feb. 7, 2013). Between April 26, 2013, and May 17, 2013, CBP liquidated Arjo’s entries at the PRC-wide rate of 206.00% in accordance with Message Number 3038305. However, Arjo protests the Port’s liquidation of its entries at the PRC-wide rate of 206.00%. It argues that it can trace its entries of CSTR to their exportation from Jiaxing Xinyue, and thus, are entitled to receive Jiaxing Xinyue’s separate rate of 55.16%.
In support of its argument, Arjo provided documentation for entry number XXX-XXXX4942, entered on December 3, 2010, as representative of the entries at issue in the protest and states that it can present similar documentation for the other entries. The documentation shows that Jiaxing Xinyue, located in Haiyan, Zhejiang, China, sold pieces of CSTR sized 3/8”-16x10’ to Boulons Plus in Anjou, Quebec, Canada, in the following transactions:
Amount:
Order Number:
Invoice Number:
Date:
48,000 pieces
984
JXXY28213
April 18, 2008
10,200 pieces
899
JXXY28532
October 14, 2008
16,800 pieces
1004
JXXY28591
December 1, 2008
60,000 pieces
1012
JXXY70016
March 30, 2009
69,000 pieces
1029
JXXY70142
March 5, 2010
45,600 pieces
403369
JXXY80040
April 13, 2011
16,200 pieces
405790
JXXY80062
October 13, 2011
Total:
334,800 pieces
April 18, 2008 - October 13, 2011
Subsequently, Thomas & Betts Ltd., located in Bromont, Quebec, Canada, ordered CSTR sized 3/8”x10’ from Boulons Plus in the following transactions:
Amount:
Converted to 10’ Pieces:
Purchase Order Number:
Date:
345,000 feet
34,500 pieces
17531
January 22, 2010
180,000 feet
18,000 pieces
19181
August 30, 2010
Total:
Converted Total:
525,000 feet
52,500 pieces
January 22, 2010 - August 30, 2010
Thomas & Betts Ltd. then sold CSTR to Westburne Div. Rexel Canada Elect., located in Saint-Laurent, Quebec, Canada, in the following transaction:
Amount:
Invoice Number:
Date:
9,000 pieces
0025622484
October 25, 2010
Westburne Electrique (“Westburne”) then sold threaded rod, sized 3/8”-16x10’, to BHM Medical Inc. (“BHM”), located in Magog, Canada, in the following transactions:
Amount
Purchase Order
Invoice Number
Date
400 pieces
62130
RG127268
November 1, 2010
450 pieces
62130
RG127270
November 1, 2010
300 pieces
62047
RG127267
November 1, 2010
Total:
1,150 pieces
Additionally, Arjo provided BHM’s inventory records that show:
Action
Amount
Invoice Number
Date
Receipt
400 pieces
RG127268
November 1, 2010
Receipt
450 pieces
RG127270
November 1, 2010
Receipt
300 pieces
RG127267
November 1, 2010
Shipment
990 pieces
CS132701
November 19, 2010
On November 1, 2010, BHM’s inventory report shows the receipt of 1150 pieces of CSTR sized 3/8”-16x10’, among other receipts of the same sized CSTR. Furthermore, BHM’s inventory report shows the shipment of 990 pieces of CSTR on November 19, 2010, among other shipments of the same sized CSTR.
Furthermore, Arjo provided the CBP Form 7501 for entry XXX-XXXX4942. This entry provides that Arjo entered 557 kg of CSTR on December 3, 2010, that was exported from Canada and imported in the United States on November 23, 2010. Additionally, Arjo provided the pro-forma invoice, PI-11797, associated with this entry. The pro-forma invoice shows the sale of 990 pieces of CSTR from BHM to Arjo that shipped on November 19, 2010. Furthermore, the pro-forma invoice lists the customer shipment number as 4549324, which is reflected on the CBP Form 7501 as the invoice number.
Arjo filed a protest with the Port on October 23, 2013, protesting in part the liquidation of its entries at the PRC-wide rate of 206.00%. Arjo asserts that its entries qualify for a separate rate of 55.16% because Jiaxing Xinyue exported the CSTR from China to Canada, which was then exported from Canada to the United States. However, the Port asserts that the entries were properly liquidated because Arjo failed to provide sufficient information to demonstrate that the CSTR was exported from China by Jiaxing Xinyue, and thus, properly received the PRC-wide rate.
ISSUE:
Whether CBP properly liquidated Arjo’s entries in accordance with Commerce’s instructions.
LAW AND ANALYSIS:
We initially note that the instant protest was timely filed within 180 days from the date of liquidation. 19 U.S.C. § 1514(c)(3)(A). CBP liquidated Arjo’s entries between April 26, 2013, and May 17, 2013, and this protest was timely filed on October 23, 2013, within 180 days. Additionally, further review is warranted because “the protest involves questions of law or fact which have not been ruled upon by the Commissioner of Customs or his designee, or by the Customs courts.” See 19 C.F.R. § 174.24(b). Specifically, we will examine the proper application of Commerce’s liquidation instructions and sufficiency of the provided documents to establish Jiaxing Xinyue as the exporter from China. Accordingly, the criteria for further review is satisfied.
Generally, when assessing and collecting antidumping duties CBP merely follows Commerce's instructions. See Mitsubishi Electronics America, Inc. v. United States, 44 F.3d 973, 977 (Fed. Cir. 1994). The courts have consistently held that CBP's role in the antidumping process is simply to follow Commerce’s instructions in collecting deposits of estimated duties and in assessing antidumping duties, together with interest, at the time of liquidation. See Fujitsu Ten Corporation of America v. United States, 957 F. Supp. 245, 249 (Ct. Int’l Trade 1997). Generally, assessed antidumping duties properly applied by CBP are not protestable, because “Customs has a merely ministerial role in liquidating antidumping duties.” 44 F.3d at 977. However, inasmuch as Arjo protests the liquidation, i.e., disputes the application by CBP of Commerce's liquidation instructions, this matter is protestable. See Xerox Corp. v. United States, 289 F.3d 792 (Fed. Cir. 2002) (holding that correcting a ministerial, factual error of CBP is protestable).
In support of it protest, Arjo provided documentation for entry number XXX-XXXX4942 to demonstrate that the CSTR was exported from China by Jiaxing Xinyue and qualifies for Jiaxing Xinyue’s separate rate of 55.16%. The documents Arjo provides for entry number XXX-XXXX4942 include: 1) commercial invoices between Jiaxing Xinyue in Haiyan, Zhejian, China, and Boulons Plus in Quebec, Canada, for a total of 334,800 pieces of CSTR (3/8”x10’) dated between April 18, 2008, and October 13, 2011; 2) two purchase orders from Thomas & Betts Ltd in Quebec, Canada, to Boulons Plus for a total of 52,500 pieces of CSTR (3/8”x10’) dated January 1, 2010, and August 30, 2010; 3) an invoice from Thomas & Betts Ltd. to Westburne Div. Rexel Canada Elect. in Quebec, Canada, for a quantity of 9,000 pieces of CSTR (3/8”x10’) on October 25, 2010; 4) three purchase orders and corresponding invoices from Westburne to BHM showing the sale of threaded rod (3/8”-16x10’) totaling 1,150 pieces of CSTR dated between October 19, 2010, and November 1, 2010; 5) a copy of BHM’s inventory report that shows the receipt of 1150 pieces of CSTR in the amounts of 350, 400, and 450, on November 1, 2010, with corresponding invoice numbers RG127267, RG127268, and RG127270, and the shipment of 990 pieces of CSTR on November 19, 2010; 6) a pro-forma invoice numbered 4549324 and dated November 19, 2010, showing the sale of 990 pieces of CSTR from BHM to Arjo; and 7) CBP Form 7501, dated December 1, 2010, which lists the entry of CSTR with an invoice number 4549324 that was exported from Canada and imported to the United States on November 23, 2010.
Based on the documentation, we find CBP properly liquidated the entries in accordance with Commerce’s instructions. Arjo attempts to show, highlighting an entry on December 3, 2010, that the CSTR it entered was obtained from BHM that BHM obtained from Westburne. The invoice number, 4549324, reported on the CBP Form 7501 is the same number as the unique customer shipment number found on the pro-forma invoice. This pro-forma invoice shows the sale of 990 pieces of CSTR from BHM to Arjo and that BHM shipped this CSTR on November 19, 2010. BHM’s inventory records reflect this sale to Arjo by listing the shipment of 990 pieces of CSTR on November 19, 2010 – the only shipment of that size on that day. Additionally, these inventory records reflect BHM’s receipt of CSTR on November 1, 2010, in the amounts of 300, 400, and 450 pieces and provide each receipt’s corresponding invoice number from Westburne as RG127267, RG127268, RG127270, respectively. Those three invoices, dated November 1, 2010, correspond to purchase orders 62047, 62130, and 62130, respectively, where BHM orders CSTR in the amounts of 300, 400, and 450 pieces from Westburne. Arjo also provides documentation that shows Westburne obtained CSTR from Thomas & Betts Ltd. Arjo evidences this by providing an invoice, numbered 0025622484, that shows the sale of 9,000 pieces of CSTR from Thomas & Betts Ltd. to Westburne on October 25, 2010. This may establish the quantity for Arjo’s December 3, 2010 entry, but the first of the protested entries entered before October 25, 2010, namely September 29, 2010. Thus, the port would be called upon to request and examine further documentation from Arjo to confirm entries prior to October 25, 2010. Moreover, while Arjo provides documentation that Westburne obtained CSTR from Boulons Plus, and invoices from Jiaxing Xinyue to Boulons Plus to evidence the sales and volume of CSTR purchased by Boulons Plus from Jiaxing Xinyue, the total quantity is 334,800 pieces of CSTR as early as April 18, 2008. In fact, only one invoice from Jiaxing Xinyue to Boulons is in 2010. While the quantity is for 69,000 pieces which would cover the 990 pieces imported by Arjo on December 3, 2010, again no other documentation was submitted to show sales occurring prior to October 25, 2010 by Thomas & Betts Ltd. Furthermore, without context as to these sales, for example, that Jiaxing Xinyue was the exclusive supplier of CSTR to Boulons Plus during the relevant time period, the documentation only establishes that sales took place between Boulons Plus and Jiaxing Xinyue without linking Arjo’s entries to Jiaxing Xinyue’s exportations of CSTR to Boulons Plus. The antidumping law does not provide for an allowance based on fungibility, and thus, Arjo must prove that its entries of CSTR came from Jiaxing Xinyue’s exports and not merely that its entries could have come from Jiaxing Xinyue. Accordingly, absent evidence to establish that Arjo imported CSTR from Jiaxing Xinyue, Arjo fails to demonstrate that its entries should have liquidated at Jiaxing Xinyue’s separate rate of 55.16%. Thus, CBP properly liquidated Arjo’s entries at the PRC-wide rate of 206.00% in accordance with Commerce’s instructions.
HOLDING:
Based on the above, Arjo’s entries were properly liquidated at the rate of 206.00% and protest 0712-13-100154 should be DENIED as to the antidumping duty rate liquidation issue.
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, together with the CBP Form 19, to the Protestant no later than 60 days from the date of this letter. Sixty days from the date of the decision, the Office of Trade, Regulations and Rulings, 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