OT:RR:CTF:EPDR H305368 IPW
Center Director Base Metals Center for Excellence and Expertise
610 S. Canal Street, Room 300
Chicago, IL 60607
Attn.: Mariann Seymour, Import Specialist
RE: Application for Further Review of Protest No. 1303-19-100273; [ ]; Country of Origin; Antidumping and Countervailing Orders; Drawn Stainless Steel Sinks from the People’s Republic of China
Dear Center Director:
This is in response to the Application for Further Review (“AFR”) of Protest No. 1303-19-100273, filed on May 20, 2019, and received by this office on July 25, 2019. We have considered the arguments raised by your office and the protestant. Our decision follows.
The protestant has asked that certain information submitted in connection with this AFR be treated as confidential. Inasmuch as this request conforms to the requirements of 19 C.F.R. § 177.2(b)(7), the request for confidentiality is approved. The information contained within brackets will not be released to the public and will be withheld from published versions of this response.
FACTS:
On August 11, 2017, [ ] (hereinafter, [ ] or “protestant”) entered stainless steel sinks. The sinks were exported by [ ] (hereinafter, [ ] or “exporter”) in Malaysia. Upon entry, the protestant claimed that the country of origin for the sinks was Malaysia, but the commercial invoice made reference to “FOB Xiaolan,” which is a port city in the People’s Republic of China (“China”), whereas none of the supporting documents presented on entry represented the sinks as originating in Malaysia. This led U.S. Customs and Border Protection (“CBP”) to request production records to verify the country of origin of the sinks. According to the import specialist with CBP, the protestant did not provide sufficient documentation to prove Malaysian production, and the protestant further admitted in a telephone call on August 6, 2018, that they wired money to a Chinese bank for this shipment. Considering these facts, CBP determined that the sinks originated in China.
Drawn stainless steel sinks from China entered during the relevant period at issue were subject to antidumping and countervailing duties. Drawn Stainless Steel Sinks from the People's Republic of China: Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order, 78 Fed. Reg. 21592 (Apr. 11, 2013); Drawn Stainless Steel Sinks From the People's Republic of China: Countervailing Duty Order, 78 Fed. Reg. 21596 (Apr. 11, 2013). In addition to determining that the sinks were subject to antidumping and countervailing duties, CBP doubled the antidumping and countervailing duties since the protestant did not provide a Certificate of Non-Reimbursement. Lastly, CBP doubled the value of the sinks since it appeared on the invoice that the unit value could be the transshipment fee for the merchandise, rather than the true value.
[ ] protests CBP’s determination of the country of origin, the doubling of antidumping and countervailing duties, and the doubling of the value of the sinks. To support their claim that the sinks originated in Malaysia, they provided a Certificate of Origin from the Malay Chamber of Commerce and Industry of Perak, Malaysia, that states the goods “were produced or processed in Malaysia.” The Certificate of Origin references the bill of lading associated with the entry at issue, which demonstrates that the sinks shipped directly from Malaysia to the United States. The protestant has also provided an insurance agreement for the exporter that covered the merchandise from “Insured’s warehouse in Perak, Malaysia to Consignee’s warehouse in PL, Savage MD.” Regarding the reference to “FOB Xiaolan” on the commercial invoice, the protestant states that it was “clearly a typographical error” because “there is no mention of China whatsoever in any other portion of the commercial documentation, including the bill of lading.”
The protestant also argues that the doubling of the antidumping and countervailing duties is no longer appropriate since they have provided a “Blanket Statement of Non-Reimbursement,” and the doubling of the value was inappropriate as the price on the invoice was consistent with previous entries made by the protestant. The Center granted the protest with respect to the doubling of antidumping and countervailing duties and the doubling of the line item value. Accordingly, the only issue on further review is the determination of whether CBP properly determined the merchandise to be subject to the antidumping and countervailing duty orders on stainless steel sinks from China.
ISSUE:
Whether CBP properly determined the merchandise to be subject to the antidumping and countervailing duty orders on drawn stainless steel sinks from China.
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 which have not previously been ruled upon. We also find that, pursuant to 19 U.S.C. § 1514(c)(3)(A), this protest was timely filed on May 20, 2019, within 180 days after the liquidation date of November 30, 2018.
Antidumping and countervailing duties properly assessed by CBP are generally not protestable because CBP’s role in liquidating entries of merchandise subject to antidumping and countervailing duty orders is “merely ministerial.” Mitsubishi Elec. Am., Inc. v. United States, 44 F.3d 973, 977 (Fed. Cir. 1994). However, the factual findings made by CBP to determine whether merchandise is subject to antidumping and countervailing duty orders, and the amount of duty owed, fall within CBP’s protestable ministerial role. See Xerox Corp. v. United States, 289 F.3d 792, 794 (Fed. Cir. 2002); Headquarters Ruling Letter (“HQ”) H192395 (January 6, 2014); HQ H189455 (February 19, 2014). CBP’s factual findings receive a presumption of correctness pursuant to 28 U.S.C. § 2639(a)(1). Consequently, a protestant bears the “burden to prove by a preponderance of the evidence” that CBP’s findings were incorrect. Ford Motor Company v. United States, 157 F.3d 849, 855 (Fed. Cir. 1998); see also Fabil Manf. Co. v. United States, 237 F.3d 1335, 1340 (Fed. Cir. 2001) (citing St. Paul Fire & Marine Insur. Co. v. United States, 6 F.3d 763, 769 (Fed. Cir. 1993) (“except for cases challenging Customs rulings before importation, the preponderance-of-the-evidence standard that generally applies in civil cases also covers suits in the Court of International Trade challenging post-importation Customs decisions”). A preponderance of the evidence has been defined in civil cases to mean “the greater weight of evidence, evidence which is more convincing than the evidence which is offered in opposition to it.” St. Paul Fire & Marine Insur. Co., 6 F.3d 763, 769 (citing Hale v. Dept. of Transp., Fed. Aviation Admin., 772 F.2d 882, 885 (Fed. Cir. 1985)).
We note that while decisions of CBP officials are generally presumed correct, there must have been a reasonable basis for the decision. Here, the sinks were accompanied by a commercial invoice that referenced “FOB Xiaolan,” a Chinese port city. Pursuant to its statutory authority under 19 U.S.C. § 1509, CBP appropriately initiated an inquiry to ascertain the correctness of the entries and the protestant’s duty liability. In response, the protestant failed to adequately prove Malaysian production and admitted that they wired payment to a Chinese bank for this shipment. Given these facts, CBP made a factual determination that the sinks originated from China.
The protestant challenges CBP’s determination that the sinks originated in China and thus are subject to antidumping and countervailing duties. Therefore, we will evaluate whether the protestant’s arguments and evidence overcome the presumption of correctness attached to CBP’s determination of the country of origin through a preponderance of the evidence. Evidence presented to rebut CBP’s presumption of correctness should be assessed “in practical terms, considering such factors as completeness, adequacy of bases, and possible motives to deceive . . . .” Georg Muller of Amer. v. United States, 729 F. Supp. 1346, 1354 (Ct. Int’l Trade 1989) (citing Mannesmann-Meer, Inc. v. United States, 433 F.2d 829, 831 (Customs Court 1970)); see also HQ H247057 (Jan. 26, 2017). Critical to rebutting the presumption in this case would be clear evidence of production in Malaysia.
With its protest submission, [ ] provides a Certificate of Origin that claims the entered merchandise is “produced or processed” in Malaysia. Certificates of Origin are not legally binding since it is CBP, not any foreign government, who is responsible for determining the country of origin for entered merchandise under U.S. law. See HQ 559664 (Feb. 28, 1997); see generally Archer Daniels Midland Co. v. U.S., 399 F. Supp 3d 1296, 1299-1300 (Ct. Int’l Trade 2019). The probative value of Certificates of Origin is especially diminished where there is little to no evidence in support of the Certificate’s claim and where there is evidence of a different country of origin. See HQ 559664 (Feb. 28, 1997) (holding that Macau Certificates of Origin, in light of investigations that showed transshipments of wax candles from China through Macau, did not sufficiently prove the candles originated in Macau). The Certificate of Origin in this case does not substitute for the necessary evidence of production in Malaysia.
The protestant also provides a bill of lading and an insurance agreement to demonstrate that the merchandise was transported from Malaysia to the United States. The fact that the sinks travelled through Malaysia is not in dispute. The two documents, however, do not further the claim that the sinks were produced in Malaysia. For example, the insurance document describes the exporter’s location as a “warehouse” rather than a manufacturing facility.
Lastly, the protestant challenges CBP’s reliance on the commercial invoice that references “FOB Xiaolan” by claiming it is “clearly a typographical error” because “there is no mention of China whatsoever in any other portion of the commercial documentation, including the bill of lading.” In this case and for the reasons mentioned above, the mere fact that the other documents provided to CBP did not mention “China” does not overcome the fact that the commercial invoice indicates shipment from China. Accordingly, the mere statement that the reference is a typographical error does not present the clear evidence required to overcome the presumption of correctness afforded in this case.
In conclusion, the arguments and evidence provided by the protestant fail to overcome CBP’s presumption of correctness because they do not demonstrate production in Malaysia. Accordingly, we uphold CBP’s determination that the country of origin for the sinks is China and subject to antidumping and countervailing duty orders.
HOLDING:
CBP properly determined the merchandise to be subject to the antidumping and countervailing duty orders on drawn stainless steel sinks from China. Therefore, you are instructed to DENY the protest 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