OT:RR:CTF:EPDR H303134 IPW
Center Director Base Metals Center of Excellence and Expertise
610 S. Canal Street, Room 300
Chicago, IL 60607
Attn.: Jeremy Jackson, Supervisory Import Specialist
RE: Application for Further Review of Protest No. 3901-16-100343; Smith-Cooper International; Antidumping Duty Order; Scope; Non-Malleable Cast Iron Pipe Fittings From the People’s Republic of China; A-570-875
Dear Center Director:
Protest No. 3901-16-100343 was forwarded to this office for further review and was received on March 12, 2019. We have considered the points raised by your office and the protestant. Our decision follows.
FACTS:
From November 9, 2014, to March 20, 2015, Smith-Cooper International (“Smith-Cooper” or “protestant”) made ten entries of non-malleable cast iron pipe fittings. The pipe fittings were imported from the People’s Republic of China (“China”). Certain non-malleable cast iron pipe fittings from China are subject to the antidumping duty order in case number A-570-875 (“the order”). See Notice of Antidumping Duty Order: Non-Malleable Cast Iron Pipe Fittings From the People’s Republic of China, 68 Fed. Reg. 16,765 (Apr. 7, 2003).
The scope of the order, in relevant part, states that “finished and unfinished non-malleable cast iron pipe fittings with an inside diameter ranging from 1/4 inch to 6 inches, whether threaded or unthreaded, regardless of industry or proprietary specifications,” are subject to the order. Id. The imported pipe fittings at issue are considered “reducing pipe fittings” because their inside diameters taper at different points along the pipe fitting. The pipe fittings at issue all have an inside diameter greater than 6 inches at one point and an inside diameter between 1/4 inch to 6 inches at another point. U.S. Customs and Border Protection (“CBP”) determined that the reducing pipe fittings were subject to the order. On November 20, 2015, and December 4, 2015, CBP liquidated the relevant entries with antidumping duties.
Smith-Cooper protests CBP’s determination to assess antidumping duties because the entered pipe fittings are in the scope of the order. According to the protestant, the scope is ambiguous as to whether reducing pipe fittings are in scope and therefore CBP’s determination of reducing pipe fittings being within the scope constitutes an “ultra vires” interpretation of the scope language. They also argue that the entered pipe fittings are “identifiable” by their largest inside diameter, which in this case is greater than the scope’s range of 6 inches, and therefore fall outside the scope’s language. Smith-Cooper also argues that several local Customs officials agreed with Smith-Cooper’s interpretation of the scope of the antidumping duty order and that such determinations evidence that CBP’s decision with regard to these entries was “not merely a factual determination.”
ISSUE:
Whether CBP properly assessed antidumping duties with regard to the ten entries of non-malleable cast iron pipe fittings at issue.
LAW AND ANALYSIS:
As an initial matter, we find that this protest meets the criteria for further review. Pursuant to 19 C.F.R. § 174.24(b), this protest involves questions of law and fact upon which have not previously ruled. We also find that, pursuant to 19 U.S.C. § 1514(c)(3)(A), this protest was timely filed on May 3, 2016, within 180 days after the liquidation dates of November 20, 2015, and December 4, 2015.
Antidumping duties properly assessed by CBP are generally not protestable because CBP’s role in liquidating entries of merchandise subject to an antidumping order is “merely ministerial.” Mitsubishi Elec. Am., Inc. v. United States, 44 F.3d 973, 977 (Fed. Cir. 1994). CBP’s role is to determine “what the merchandise is, and whether it is described in an order” to assess the appropriate duty. Xerox Corp. v. United States, 289 F.3d at 794-95 (Fed. Cir. 2002). Pursuant to its ministerial function, however, CBP cannot “affect the scope of the order.” LDA Incorporado v. United States, 79 F. Supp. 3d 1331, 1339 (Ct. Int’l Trade 2015).
“[W]here the importer claims that Customs erred as a matter of fact by including its goods within the scope of the order, Customs’ determination is the proper subject for a protest. LDA Incorporado v. United States, 978 F. Supp. 2d 1359, 1367 (Ct. Int’l Trade 2014) (citing Xerox Corp. v. United States, 289 F.3d 792, 795 (Fed. Cir. 2002). On the other hand, if the scope of the order is unambiguous and CBP follows Commerce’s instructions, there is no decision that is made by CBP that would be protestable. See Mitsubishi Elecs. Am., Inc. v. United States, 44 F.3d 973, 977 (Fed. Cir. 1994) (holding that CBP has a ministerial role in liquidating antidumping duties and “cannot modify Commerce's determinations, their underlying facts, or their enforcement”); Headquarters Ruling Letter (“HQ”) H258302 (Sept. 3, 2015) (finding that “because the scope of the antidumping and countervailing duty orders was clear and CBP acted in accordance with Commerce's instructions, CBP acted in its ministerial capacity when it liquidated its entries” and the protest “failed to raise a protestable issue”).
CBP concludes merchandise falls within the “common meaning” of the scope language based on “observable physical characteristics.” Sunpreme, Inc. v. United States, 190 F. Supp.3d 1185, 1202 (Ct. Int’l Trade 2016). As the Federal Circuit explained in TR Int’l Trading Co. v. United States, CBP makes initial determinations regarding whether goods are subject to an order, “even if there is some ambiguity involved in the order’s application.” 4 F.4th 1363, 1369 (Fed. Cir. 2021) (citing Sunpreme, Inc., 892 F.3d 1186, 1193 (Fed. Cir. 2018); see also Sunpreme Inc. v. United States, 946 F.3d 1300, 1320-21 (“[w]hen the order is ambiguous, Customs is nonetheless called upon to answer the question”). Accordingly, “where CBP can conclude that a product falls within the words of the order, both the affirmative scope language and any exclusions, CBP properly requires an importer to enter its goods as subject to an order.” Sunpreme, Inc., 190 F. Supp. 3d at 1202. If an importer disagrees with CBP’s determination, “the proper remedy is for the importer to seek a scope inquiry from Commerce.” TR Int'l Trading Co., 4 F.4th at 1369 (citing Sunpreme, Inc., 892 F.3d at 1193).
In this case, the protestant argues that the entered pipe fittings are not in scope. They claim that the order is ambiguous as to reducing pipe fittings and therefore CBP inherently and improperly went beyond a merely factual determination and interpreted the order when assessing the antidumping duties. Smith-Cooper asserts that the allowance by certain CBP officials to enter similar merchandise as not subject to the antidumping duty order is evidence that CBP’s decision with regard to these entries was “not merely a factual determination.”
We disagree. First, the plain language of the scope order states, in pertinent part, that subject merchandise includes “finished and unfinished non-malleable cast iron pipe fittings with an inside diameter ranging from 1/4 inch to 6 inches.” Notice of Antidumping Duty Order: Non-Malleable Cast Iron Pipe Fittings From the People's Republic of China, 68 Fed. Reg. 16,765 (Apr. 7, 2003). The language of the order uses “an” inside diameter, as opposed to “the” inside diameter. Therefore, the common meaning of the scope applies to pipe fittings that have an inside diameter ranging from 1/4 inch to 6 inches, notwithstanding another inside diameter outside that range. Therefore, CBP can conclude that the pipe fittings fall into the common meaning of the scope based on observable, physical characteristics if the pipe fittings have an inside diameter within the scope’s range. Because the order covers pipe fittings that have an inside diameter ranging from 1/4 inch to 6 inches, and the observable, physical characteristics of the pipe fittings at issue have an inside diameter ranging from 1/4 inch to 6 inches, CBP properly determined that the merchandise falls within the scope of the order.
The protestant argues that the pipe fittings should not be in scope because their inside diameters, at certain points along the pipe fitting, expand beyond 6 inches, and that the largest diameter should be determinative. This interpretation would, in effect, create an exemption from the order for pipe fittings that have inside diameters ranging from 1/4 inch to 6 inches if at some point the inside diameter goes beyond that range. CBP cannot “affect the scope of the order.” LDA Incorporado, 79 F. Supp. 3d at 1339. Adding this implied exemption would impermissibly supplant Commerce’s role in interpreting the scope. Instead, CBP is required to rely upon the existing scope language as provided by Commerce.
Additionally, the fact that certain similar entries were liquidated without the assessment of antidumping duties is not evidence that CBP’s determination went beyond a factual one. To the extent Smith-Cooper is arguing that the scope is ambiguous, “the proper remedy is for the importer to seek a scope inquiry from Commerce.” TR Int’l Trading Co., 4 F.4th at 1369 (citing Sunpreme, Inc., 892 F.3d at 1193).
In sum, CBP properly determined that the entered pipe fittings are described by the plain language of the scope of the antidumping order and assessed the necessary antidumping duties on Smith-Cooper’s entries. CBP was merely following Commerce’s instructions in assessing and collecting duties and merely conducted its ministerial role by liquidating the entries of merchandise subject to the applicable antidumping order. Accordingly, the issues raised by Smith-Cooper are not protestable. Mitsubishi Elec. Am., Inc. v. United States, 44 F.3d 973, 977 (Fed. Cir. 1994).
If Smith-Cooper continues to believe that the scope is ambiguous or that CBP has erred as a matter of fact and its entered merchandise is outside the scope of the antidumping duty order at issue, it must seek a scope ruling request from Commerce to determine whether the specific pipe fittings at issue are outside of the scope of the antidumping order. TR Int’l Trading Co., 4 F.4th at 1369; HQ H305019 (Feb. 8, 2024).
HOLDING:
CBP’s properly assessed antidumping duties on the entries at issue under the antidumping duty order on non-malleable cast iron pipe fittings from China and, accordingly, the issues raised are not protestable within the meaning of 19 U.S.C. § 1514. The protest should be DENIED in full.
You are instructed to notify the Protestant of this decision no later than 60 days from the date of this decision. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to this notification. Sixty days from the date of the decision, the Office of Trade, Regulations and Rulings will make the decision available to CBP personnel and the public on the Customs Rulings Online Search System (“CROSS”) at https://rulings.cbp.gov/, or other methods of public distribution.
Sincerely,
Yuliya A. Gulis, Director
Commercial and Trade Facilitation Division