LIQ3-01
OT:RR:CTF:ER
H300287 ABH
Port Director
U.S. Customs and Border Protection
1000 Second Ave. Suite 2100
Seattle, WA 98104-1020
Attn: Jenna Givers, Import Specialist
Re: Application for Further Review for Protest 4601-18-100658; Antidumping Duties; Stainless Steel Sinks from China
Dear Port Director:
The purpose of this correspondence is to address the application for further review (“AFR”) of Protest Number 4601-18-100658, dated April 26, 2018, filed by Ponko Kitchen Co., Ltd. (“Ponko”) regarding the assessment of antidumping duties pursuant to the antidumping duty order in case A-570-983.
FACTS:
Ponko is the importer of record of the six entries at issue, numbers XXX-XXXX724-0, XXX-XXXX725-7, XXX-XXXX731-5, XXX-XXXX243-0, XXX-XXXX244-8, and XXX-XXXX247-1. Ponko imported the merchandise into the Port of Seattle, Washington, between January and March 2016. Ponko entered the merchandise under Harmonized Tariff Schedule of the United States (“HTSUS”) subheading 7324.10.0010, as (“PRC”) manufactured by Guangdong Yingao Kitchen Utensils Co., Ltd. (“Yingao Kitchen”) and subject to the antidumping (“AD”) duties pursuant to Case Number A-570-983, drawn stainless steel sinks from the PRC.
On June 22, 2016, the U.S. Department of Commerce (“Commerce”) issued Message No. 6174308 and directed U.S. Customs and Border Protection (“CBP”) to suspend liquidation of the entries at issue for the duration of the administrative review. On November 1, 2017, Commerce issued Message Number 7305306 and instructed CBP to liquidate the entries at issue. On November 3, 2017, CBP assessed antidumping duties for all six entries at the PRC-wide rate of 76.45 percent pursuant to Commerce Message Number 7305306. Message Number 7305306 states that,
For all shipments of drawn stainless steel sinks from the People’s Republic of China (PRC) exported by Guangdong Yingao Kitchen Utensils Co., Ltd (A-570-983-027), imported by or sold to (as indicated on the commercial invoice or Customs documentation) the firms listed below, and entered, or withdrawn from warehouse, for consumption during the period 04/01/2015 through 03/31/2016, assess an antidumping liability equal to the per-unit amounts listed below:
The message listed nearly twenty confidential “importer or customer” names and their individual and confidential final rates for the administrative review period.
Commerce indicated, however, that for all shipments of drawn stainless steel sinks from the PRC exported by Yingao Kitchen during the same period and not covered by the specific importer or customer listed, CBP was to “assess antidumping duties at the PRC-wide rate. The PRC-wide rate is 76.45 percent.” On the date of liquidation, November 3, 2017, the documentation submitted to CBP only indicated Ponko as the importer and customer. Because Ponko was not one of the listed importers or customers in Message Number 7305306, CBP assessed antidumping duties at the PRC-wide rate of 76.45 percent.
With the protest, Ponko submitted invoices for each of the six entries at issue that demonstrate that Yingao Kitchen exported shipments of drawn stainless steel sinks that were imported by Ponko and, in-turn, sold by Ponko to one of five customers enumerated in Message Number 7305306. The corresponding invoice number indicated on the invoice from Yingao Kitchen to Ponko is listed on each Entry Summary (CBP Form 7501) and subsequently referenced in each “sold to” commercial invoice to the customer. The product numbers and quantities also match between the back-to-back invoices. Ponko argues that the entries at protest should be liquidated at the rates indicated for each “sold to” customer in Commerce’s Message Number 7305306. Finally, Ponko claims that it is an affiliated importer of Yingao Kitchen.
ISSUE:
At what antidumping duty rate should the six entries at issue be liquidated?
LAW AND ANALYSIS:
It is the opinion of your office that this protest meets the criteria for further review. We agree and are of the opinion that this protest involves questions of law and fact, upon which we have not been previously ruled. 19 C.F.R. § 174.24(b). We also note that the instant 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 entry on November 3, 2017. Ponko filed its protest on April 26, 2018, which is within the 180-day deadline.
Once Commerce instructs Customs to liquidate entries, “Customs merely follows Commerce’s instructions in assessing and collecting duties.” Mitsubishi Elecs. Am. Inc. v. United States, 44 F.3d 973, 977 (Fed. Cir. 1994). Customs cannot “modify Commerce’s determinations, their underlying facts, or their enforcement.” Id. (quoting Royal Bus. Machs. Inc. v. United States, 507 F. Supp. 1007, 1014 n.18 (Ct. Int’l Trade 1980)). Customs plays a “merely ministerial role in liquidating antidumping duties.” Id. at 977. “Customs should do no more than enact the intentions of Commerce.” See e.g., Shinyei Corp. of Am. v. United States, 2011 Ct. Int’l Trade LEXIS 65, *10 (June 15, 2011) (requiring Customs to consider documentation submitted at protest evidencing a sale, which occurred after entry, to an ultimate “sold to” customer listed in Commerce instruction).
In this case, Ponko disputes CBP’s application of Commerce’s liquidation instructions in Message Number 7305306 to the six entries at issue. Commerce’s message indicates that subject merchandise exported by Yingao Kitchen and “imported by or sold to” one of the customers named in the instructions, should receive the final rate indicated for that “sold to” customer.
For each of the six entries, Ponko provided CBP with invoices that demonstrate that Yingao Kitchen exported the subject merchandise. Commerce expressly stated that a commercial invoice was sufficient proof of a sale to one of the enumerated customers. Although Ponko imported the merchandise and was not an enumerated customer in Commerce’s Message Number 7305306, Ponko provided invoices demonstrating the sale of that merchandise to customers enumerated in Commerce’s message. The back-to-back invoices can be traced through the invoice number to each relevant entry summary documentation. Here, the Center for Excellence and Expertise processing the protest was satisfied with the sufficiency and veracity of the invoices. Where that is not the case, additional supporting documents, such as purchase orders and so forth, may be necessary. Accordingly, based on the specific documents provided by Ponko for each entry at issue, the specific language of the applicable liquidation instructions from Commerce, and the facts in this case, CBP should assess the final antidumping rate indicated by Commerce in Message Number 7305306 for each customer to which Ponko sold the subject merchandise.
HOLDING:
Based on the foregoing, the entries at issue should be re-liquidated and assessed antidumping duties per Message Number 7305306 at the rate assigned to Ponko’s customers as reflected in the invoices supplied. The protest should be GRANTED in full.
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 Customs Rulings Online Search System (“CROSS”) at https://rulings.cbp.gov/, which can be found on the U.S. Customs and Border Protection website at http://www.cbp.gov and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial & Trade Facilitation Division