OT:RR:CTF:EPDR H307774 IPW
Center Director
Industrial and Manufacturing Materials
Center for Excellence and Expertise
U.S. Customs and Border Protection
Buffalo Field Office
Buffalo, NY 14225
Attn.: Nicholas Bishop, Supervisory Import Specialist
RE: Application for Further Review of Protest No. 3001-18-100139; Access China Industrial Textile Inc.; Antidumping and Countervailing Orders; Scope; Certain Amorphous Silica Fabric from the People’s Republic of China
Dear Center Director:
Protest No. 3001-18-100139 was forwarded to this office for further review and was received on December 17, 2019. We have considered the points raised by your office and the protestant. Our decision follows.
FACTS:
On September 3, 2016, Access China Industrial Textile Inc. (hereinafter, “ACIT” or “protestant”) entered woven glass fiber articles classified in subheading 7019.90.1000, Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”), which provides for “glass fibers … and articles thereof …: other: woven.” ACIT entered the merchandise with entry type 03, which delineates entries that are subject to antidumping or countervailing duties. While ACIT entered the merchandise subject to countervailing duty case C-570-039, they did not claim the corresponding antidumping case, A-570-038. Certain amorphous silica fabric from the People’s Republic of China (“China”) entered during the relevant period at issue are subject to antidumping and countervailing duty orders (“the orders”). Certain Amorphous Silica Fabric From the People’s Republic of China: Antidumping Duty Order, 82 Fed. Reg. 14314 (Mar. 17, 2017); Certain Amorphous Silica Fabric From the People’s Republic of China: Countervailing Duty Order, 82 Fed. Reg. 14316 (Mar. 17, 2017). The scope of the orders, in part, state that merchandise that is “woven (whether from yarns or rovings) industrial grade amorphous silica fabric, which contains a minimum of 90 percent silica (SiO2) by nominal weight, and a nominal width in excess of 8 inches,” is subject to the orders. The orders also state that subject imports are normally classified under certain subheadings, “but may also enter under” subheading 7019.90.1000, HTSUSA. The commercial invoice described the imported merchandise as “woven glass insulation 306-80179 TDP15.” Given the merchandise was entered subject to the countervailing duty order and given the description of the merchandise and the asserted HTSUS subheading being consistent with the orders, U.S. Customs and Border Protection (“CBP”) determined that the merchandise fell into the scope of the antidumping order as well. CBP liquidated the entry with antidumping and countervailing duties.
ACIT protests CBP’s determination that the entered glass fiber articles are in scope of the orders. They state that they made a mistake by claiming the entry was subject to the countervailing order. They argue that the merchandise is electronic-glass (referred to as “e-glass”), which according to the protestant is composed of 53.5% to 55.5% SiO2, below the 90% required by the scope of the orders. To support their argument that the merchandise is outside of the scope, they have provided an engineering drawing that they assert indicates that the merchandise is made of e-glass. The engineering drawing refers to part number 4021-152. Lastly, they have provided general materials that discuss the properties of “e-glass.” After ACIT filed the protest, CBP issued a Request for Information (“CF28”) requesting ACIT to provide documentation that links the product described in the invoice, 306-80179 TDP15, with the product described in the engineering drawing, 4021-152. ACIT’s response included the same general materials on e-glass and an updated engineering drawing for 4021-152.
ISSUE:
Whether CBP properly determined that the entered woven glass fiber articles are in scope of the antidumping and countervailing duty orders.
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 December 20, 2018, within 180 days after the liquidation date of July 20, 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). 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 792, 794 (Fed. Cir. 2002). 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). 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.” Id.
In this case, at time of entry, ACIT claimed the imported merchandise was subject to the countervailing duty order. CBP then determined that the antidumping order also applied given that the description of the merchandise and the asserted HTSUS subheading were consistent with the orders. ACIT attempted to demonstrate that the merchandise was outside of the scope by referring to an engineering document and general materials about e-glass. However, the engineering document refers to a different part number, 4021-152, from the part number on the invoice provided with the entry documentation, namely 306-80179 TDP15. The additional engineering drawing provided in response to the CF28 similarly failed to adequately connect to the part number enumerated on the invoice. As such, it is impossible to view these engineering drawings, along with the general materials on e-glass, as representative of the merchandise described in the entry documents. Therefore, the protestant has not provided enough documentation to prove that the entered merchandise is outside the scope of the orders.
HOLDING:
CBP properly determined the woven glass fiber articles to be within scope of the antidumping and countervailing duty orders. 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