OT:RR:CTF:EPDR H308175 ND
Dina Amato, Center Director
Agriculture and Prepared Products
Center of Excellence and Expertise
U.S. Customs and Border Protection
301 E Ocean Bl., Fl. 14
Long Beach, CA 90802-4826
Attn: Pamela Jorgensen, Senior Import Specialist
Re: Application for Further Review of Protest Number 270419104591; Antidumping Duties; Certain Frozen Warmwater Shrimp from the Socialist Republic of Vietnam; A-552-802
Dear Center Director:
The purpose of this decision is to address the application for further review (“AFR”) of protest number 270419104591, filed on September 20, 2019, by DNI Group, LLC (“DNI”) regarding the assessment of antidumping duties (“ADD”) pursuant to the ADD order in case A-552-802. This protest is designated as the lead protest and addresses the identical facts, issues, and arguments presented in protest number 270420109780 with regard to six additional entries.
FACTS:
Between February 22, 2012, and January 22, 2013, DNI imported eight entries of frozen warmwater shrimp from Vietnam entered pursuant to the ADD order in case A-552-802. See Notice of Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Certain Frozen Warmwater Shrimp from the People’s Republic of China 1, 70 Fed. Reg. 5,149 (Feb. 1, 2005). According to the Automated Commercial Environment (“ACE”), DNI deposited ADD at the time of entry. According to the entry summaries (CBP Form 7501), the exporter was Vietnamese company Soc Trang Seafood Joint Stock Company (“Stapimex”).
On November 18, 2014, the United States Department of Commerce (“Commerce”) issued Message Number 4322309, advising U.S. Customs and Border Protection (“CBP”) that:
On 11/14/2014, the [CIT] issued a preliminary injunction (PI) enjoining liquidation of entries identified in paragraph 2 which are subject to the antidumping duty order . . . . (A-552-802) for the period 02/01/2012 through 01/31/2013. This PI was issued in connection with court number 14-00258.
This PI enjoins liquidation of entries which were exported by: . . . . [Stapimex] . . . .
Commerce Message Number 4322309.
On February 5, 2019, Commerce issued non-public Message Number 9051304 (“Message Number 9051304”) which stated:
On 11/07/2018, the [CAFC] issued a final decision . . . . As a result of this decision, the injunctions (to which message[s] . . . . 4322309 dated 11/18/2014 as corrected in message 4332303 dated 11/28/2014, and message 4330312 dated 11/26/2014 refer), enjoining liquidation of entries which are subject to the antidumping duty order on certain frozen warmwater shrimp from the Socialist Republic of Vietnam for the period 02/01/2012 through 1/31/2013 exported by [Stapimex] . . . . dissolved on 02/05/2019.
For all shipments of certain frozen warmwater shrimp from . . . . Vietnam exported by . . . . [Stapimex] 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 02/01/2012 through 1/13/2013, assess an antidumping liability equal to the per unit rates listed below.
Importer or Customer: [Customer]
Final rate: $xxx per kilogram
For all shipments of certain frozen warmwater shrimp from … Vietnam entered, or withdrawn form warehouse, for consumption during the period 02/01/2012 through 1/31/2013, entered under the company-specific case number A-552-802-[xxx], and not covered by paragraph 2, assess antidumping duties at … [xx] percent.
Commerce Message Number 9051304. In paragraph 2, the message lists eleven confidential “importer or customer” names and the rates at which entries of frozen warmwater shrimp sold to those importers or customers should be liquidated. Id. (“Customer”) was among the enumerated customers assigned a rate in paragraph 2. Id. On March 29, 2019, CBP liquidated all eight entries at the specified rate pursuant to paragraph 3 of Message Number 9051304.
DNI filed protest number 270419104591 on September 20, 2019. DNI alleges that while it is the importer of record for all eight entries, “Customer” is the actual customer. DNI seeks reliquidation of its entries at the specific duty rate for “Customer” enumerated in paragraph 2 of Message Number 9051304 (“Customer rate”).
According to CBP, DNI failed to establish “Customer” as an importer or customer for the relevant entries per paragraph 2 of Message Number 9051304. On the date of liquidation, March 29, 2019, the documentation submitted to CBP only identified DNI as the importer and customer. Because DNI was not one of the listed importers or customers in paragraph 2 of Message Number 9051304, CBP assessed ADD on all the entries at the rate specified in paragraph 3 of Message Number 9051304 for unnamed customers.
In support of its protest, DNI submitted the following documents to CBP Headquarters (“HQ”):
Sales Contract. This document names Stapimex as the seller, “Customer” as the buyer, and DNI as the consignee. It also lists the imported merchandise that is found on the corresponding CBP Form 7501.
Commercial Invoice 1 (“DNI Buyer”). The first of two invoice names DNI under “sold to” and as consignee, identifies the quantity and description of goods, and appears to be signed by “Customer’s” group manager for the foodstuffs department.
Packing List 1. The commercial invoices are followed by these accompanying packing lists. These packing lists include the invoice number, names DNI under “sold to” and as consignee and identifies the quantity and description of goods.
Commercial Invoice 2 (“Customer Buyer”). These commercial invoices name “Customer” under “For Account and Risks Messrs.,” and name DNI under “notify party.” This invoice also identifies the bill of lading number, lists an invoice number, and identifies the quantity and description of goods for each entry. The quantity and description of goods for each commercial invoice is identical to that listed on the other commercial invoice identifying DNI as the “sold to” party, as well as on CBP Form 7501.
Packing List 2. This packing list names “Customer” as the buyer, includes the corresponding bill of lading number, names DNI under “notify party,” and lists the quantity and merchandise that is also found on commercial invoices 1 and 2, packing list 1, and each corresponding CBP Form 7501.
The back-to-back commercial invoices and packing lists identify product descriptions and quantities identical to those listed on all corresponding CBP Form 7501.
ISSUE:
At what antidumping duty rate should the entries imported by DNI and exported by Stapimex 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 further 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 of liquidation. CBP liquidated the relevant entries on March 29, 2019. DNI filed its protest on September 20, 2019, 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).
To determine whether a sale to “Customer” occurred, CBP has traditionally looked to the documentation filed along with the entry, such as a commercial invoice. For example, in Headquarters Ruling Letter (“HQ”) H300287 (Feb. 25, 2019), we deemed the evidence presented by an importer, Ponko, to be sufficient proof that an enumerated company was the actual customer for merchandise imported and sold by Ponko. The sale to an enumerated company rendered Ponko’s imports eligible for that specific company’s individual rate in the applicable and non-public Commerce liquidation instructions. In that case, as herein, Commerce directed CBP to liquidate the relevant entries at the individual ADD rate specified for enumerated customers, or at a general PRC-wide rate for non-enumerated customers such as Ponko. The entry documents submitted to CBP listed Ponko as the importer of record and consignee on CBP Form 7501, so it appeared that Ponko was the only entity implicated in the import transaction. With its protest, Ponko submitted two additional invoices for each subject entry, demonstrating each shipment imported by Ponko was ultimately sold to one of the five customers enumerated in non-public Commerce Message Number 7305306 (Nov. 1, 2017). Ponko provided two invoices clearly establishing that an enumerated customer was purchasing the imported merchandise from Ponko. The invoice number on both invoices matched the invoice number listed on the corresponding CBP Form 7501.
DNI alleges that while it is the importer of record for all eight entries, “Customer” is the actual customer. DNI seeks reliquidation of its entries at the specific duty rate for “Customer” enumerated in paragraph 2 of Message Number 9051304 (“Customer rate”).
For each of the eight entries, DNI provided CBP with invoices that demonstrate that Stapimex exported the subject merchandise. Although DNI imported the merchandise and was not an enumerated customer in Message Number 9051304, DNI provided invoices demonstrating the sale of shrimp to a customer enumerated in paragraph 2 of Message Number 9051304, “Customer.” The two commercial invoices and packing lists indicate that “Customer” and DNI are both customers and DNI is the importer. Upon request by CBP HQ, DNI provided sales contracts that identify Stapimex as the seller, “Customer” as the buyer, and DNI as the consignee. These contracts resolve this ambiguity and prove that “Customer” is the buyer. Additionally, all entries have invoices and packing lists that name “Customer” as the buyer of the merchandise, and the merchandise descriptions and quantities on the two commercial invoices and packing lists match the descriptions and quantities on the corresponding CBP Form 7501.
As we determined in HQ H300287, the two commercial invoices provided by DNI can be traced through the invoice descriptions and quantities, as well as the packing lists to each corresponding CBP Form 7501. Commerce expressly stated that a commercial invoice was sufficient proof of a sale to one of the enumerated customers in Message Number 9051304. In addition to the invoices, the sales contracts clarify that “Customer” is the buyer and DNI is the consignee. Based on the documents provided by DNI for each entry at issue, the specific language of the applicable liquidation instructions from Commerce, and the facts in this case, we find that “Customer” is the buyer of the subject merchandise. This analysis is also applicable with respect to the liquidation instructions in Message Number 9163306 (May 12, 2019) and the entries at issue in protest number 270420109780.
Accordingly, CBP should reliquidate the entries at issue in protest number 270419104591 at the “Customer” rate enumerated in paragraph 2 of Commerce Message Number 9051304. Additionally, CBP should reliquidate the entries at issue in protest number 270420109780 at “Customer” rate enumerated in Commerce Message Number 9163306.
HOLDING:
Based on the foregoing, the entries at issue should be reliquidated and assessed antidumping duties per Message Numbers 9051304 and 9163306 at the rate assigned to “Customer” as reflected in the invoices supplied. The protests should be GRANTED 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