PRO 2-05
OT:RR:CTF:ER H114760 GGK
Port Director
U.S. Customs and Border Protection
726 Exchange Street, Suite 400
Buffalo, NY 14210
Attn: Lawrence J. Mruk
RE: DMC Visions, Inc.: Application for further review and Protest number 0901-08-100187
Dear Port Director:
This protest review decision is in response to the application for further review (“AFR”) for Protest number 0901-08-100187 (“Protest”), filed by the Protestant, DMC Visions, Inc. (“DMC”), on May 9, 2008. This office received the Protest for further review on July 13, 2010.
FACTS:
On November 14, 2005, DMC entered a shipment of candles from the People’s Republic of China (“China”). The entry was assigned entry number xxx-xxxx8245. Pursuant to instructions from the Department of Commerce (“Commerce”), Customs and Border Protection (“CBP”) assessed antidumping duties on the candles and liquidated the entry on February 8, 2008. DMC now protests CBP’s assessment of antidumping duties and liquidation.
Petroleum wax candles from China are subject to antidumping duties in the United States. The original scope of the Antidumping Duty Order covered petroleum wax candles from China that are composed of 50% or more petroleum wax. On March 7, 2005, Commerce published a notice informing the public of the initiation of an anticircumvention inquiry of the Antidumping Duty Order for petroleum wax candles from China. The focus of the anticircumvention inquiry was to determine whether mixed wax candles composed of petroleum wax and varying amounts
of either palm or vegetable based waxes were within the scope of the Antidumping Order. After Commerce initiated the anticircumvention inquiry, DMC imported the candles at issue and entered the shipment as a free of duty on November 14, 2005. According to the invoice filed at the time of entry, the candles were manufactured in China by “Candle Passions” and were described as containing more than 50% palm wax.
On June 2, 2006, Commerce issued an affirmative preliminary determination of circumvention of the antidumping order (“Preliminary Determination”). The Preliminary Determination concluded that mixed-wax candles containing not more than 87.80% palm or vegetable based wax and petroleum wax are within the scope of the Antidumping Order. Consequently, on July 26, 2006, CBP issued a Notice of Action to DMC to advance the rate of duty for the candles to the antidumping duty rate of 108.3%. As a basis of this proposed increase, CBP stated that the candles appeared to fall within the scope of Commerce’s June 2, 2006 affirmative Preliminary Determination regarding circumvention of the Antidumping Order. In response to the Notice of Action, DMC sent a letter, dated August 14, 2006, to CBP that stated the following:
On our commercial invoice, we indicated “ALL CANDLES 51%+ PALM WAX.” The candles we have imported were made with Palm wax (vegetable-based wax) cores and then over-dipped with a paraffin/petroleum wax coating, therefore the percentage of vegetable wax is far greater than 51% and is in fact closer to 95% vegetable/non-petroleum material. We had not indicated the exact percentage of vegetable material on our commercial invoice as the antidumping duties only applied to candles with under 50% vegetable material. If a laboratory analysis is required, it will take 30-45 days to furnish this as the product will need to be sent away.
Subsequently, on October 6, 2006, Commerce issued its affirmative final determination of circumvention of antidumping duty order (“Final Determination”). In its Final Determination, Commerce concluded that mixed-wax candles containing any amount of petroleum wax are within the scope of the Antidumping Order covering petroleum wax candles from China. In light of the Final Determination, CBP issued a second Notice of Action on October 25, 2006, which advised DMC that the candles were subject to the antidumping duty
rate of 108.3%. This antidumping duty assessment was in alignment with Commerce’s October 6, 2006, Final Determination because the candles contained petroleum wax. After receiving the second Notice of Action, DMC, in a fax memo dated November 10, 2006, requested that CBP conduct a laboratory analysis to determine whether the imported candles contained petroleum-based wax. Subsequently, on or about November 20, 2006, DMC sent CBP sample candles for laboratory analysis.
Upon receiving the samples, CBP’s Laboratories and Scientific Services (“LSS”) tested and analyzed the wax content of three candles. The LSS report, date January 30, 2007, concluded: “This sample of three candles (one each red, white and brown) is composed of palm wax (mainly acid wax with some ester wax) and paraffin wax. The paraffin content averages 0.3+/-0.1% per candle. Methods: CN 0509-001-34P and CN 0301-011-34V.” Based on the LSS analysis, CBP requested guidance from Commerce to determine whether candles with a paraffin wax content that averaged 0.3% +/-0.1% fell with the scope of the Antidumping Order. In response to CBP’s inquiry, Commerce, on February 28, 2007, advised CBP that such candles fell within the scope of the Final Determination and were, therefore, subject to the Antidumping Order. Consequently, CBP liquidated the entry at issue on February 8, 2008, at the antidumping duty rate of 108.3%. DMC subsequently filed its Protest on May 9, 2008.
ISSUE:
Whether CBP properly liquidated the entries with the assessment of antidumping duties.
LAW AND ANALYSIS:
As an initial matter, we note that a claimant may protest the rate and amount of duties charged, and the liquidation or reliquidation of an entry by CBP pursuant to 19 U.S.C. § 1514(a)(2), (5). DMC timely filed its Protest on May 9, 2008, which is within 180 days of the date of liquidation on February 8, 2008. The Port preliminarily approved DMC’s request for further review and forwarded the Protest to CBP Headquarters on June 28, 2010. Upon review of the AFR, we find that DMC’s Protest raises issues that have not been the subject of a Headquarters ruling or court decision. See 19 C.F.R. § 174.24(b); 19 C.F.R. § 174.26(b)(1)(iv). Therefore, further review is warranted.
DMC’s protest of the entry’s liquidation is premised solely on the allegation that the imported candles do not contain any amount of petroleum wax. Thus, DMC asserts that the entry is not subject to antidumping duties at the rate of 108.3%. To counter CBP’s laboratory finding that the candles contain an average petroleum wax content of 0.3% +/-0.1%, DMC provides its own certified laboratory analysis conducted on samples of merchandise allegedly exported by the Chinese manufacturer. As explained below, we find that CBP’s assessment of the wax content for the candles is correct despite the laboratory analysis provided by DMC.
CBP decisions receive a presumption of correctness and a party challenging a CBP decision bears the burden of proving otherwise. See 28 U.S.C. § 2639(a)(1). Additionally, the courts have long held that “the methods of weighing, measuring, and testing merchandise used by customs officers and the results obtained are presumed to be correct.” Aluminum Co. of America v. United States, 477 F.2d 1396, 1398 (C.C.P.A. 1973) (quoting with approval Consolidated Cork Corp. v. United States, 54 Cust. Ct. 83, 85 (1965)). This presumption is rebutted, however, “by showing that such methods or results are erroneous.” Aluminum Co., 477 F.2d at 1398. Alternatively, the presumption of correctness may be overcome if the challenging party submits “evidence of analysis they applied to the merchandise which gave a result different from that claimed by the Government.” Aluminum Co., 477 F.2d at 1399. In both situations, whether there is a showing of error or of contrary evidence, a prima facie case is established that destroys the presumption of correctness and the Government bears the burden of going forward with the evidence. See Aluminum Co., 477 F.2d at 1398-99.
By producing a laboratory analysis that allegedly contradicts CBP’s laboratory results, DMC attempts to establish a prima facie case to rebut the presumed correctness of CBP’s determination that the imported candles contain petroleum wax. DMC’s laboratory results, however, do not necessarily contradict CBP’s laboratory analysis of the merchandise entered. Specifically, DMC fails to establish that the sample tested by its laboratory is representative of the actual shipment of candles at issue in the protest. When presenting evidence of analysis that proffers different results, it is necessary to demonstrate that the tested sample is removed from the actual shipment under investigation and comparable to the sample tested by the Government. See HQ 964760 (October 11, 2001). Here, CBP’s laboratory analysis is based on the testing of three 10” candles. These candles were directly submitted by DMC as samples removed from the shipment under protest and representative of merchandise entered. Moreover, DMC does not allege any errors in CBP’s testing methods. Therefore, DMC has neither rebutted CBP’s laboratory analysis, nor shown that its testing method was flawed.
In contrast, the laboratory analysis provided by DMC indicates that only one 10” candle was tested for wax content. According to DMC, this candle was procured from “retained samples of merchandise that was exported.” It is unclear whether this candle was a sample retained by either the Chinese manufacturer or foreign exporter prior to the export of a shipment of candles rather than a sample retained by DMC upon receipt of the imported candles at issue in this case. Specifically, the entry summary and invoice filed by DMC indicate that the manufacturer of the imported candles is “Candle Passions.” The laboratory analysis submitted by DMC, however, states that the manufacturer of the tested candle is “Heibei Great Nation Candle” of China. Therefore, we cannot verify whether the candle tested by DMC was removed from the actual shipment under investigation and representative of the merchandise entered. Nor can we ascertain whether the candle tested by DMC was produced by the same manufacturer or manufactured in the same manner as imported candles. In view of these+ issues, we cannot verify whether DMC’s laboratory results constitute evidence of analysis applied to the actual merchandise entered. Therefore, DMC has failed to establish a prima facie case that would rebut the presumption of correctness attached to CBP’s determination that the imported candles contain an average petroleum wax content of 0.3% +/-0.1%.
Lastly, DMC’s allegation that the imported candles do not contain any petroleum wax is contradicted by DMC’s own written communications with CBP. DMC sent CBP a letter dated August 14, 2006, which explained that although the commercial invoice states that the imported candles contain more than 51% vegetable wax, the candles are actually made with vegetable wax cores. These candles, according to the letter, are “made with Palm wax (vegetable-based wax) cores and then over-dipped with a paraffin/petroleum wax coating, therefore the percentage of vegetable wax is far greater than 51% and is in fact closer to 95% vegetable/non-petroleum material.” Based on the admission contained in DMC’s August 14, 2006 letter and CBP’s laboratory test results, the imported candles at issue contain petroleum wax. Pursuant to Commerce’s Final Determination, candles containing any amount of petroleum wax fall within the scope of the Antidumping Order. Thus, DMC’s imported candles at issue in this Protest are subject to the Antidumping Order and properly assessed antidumping duties.
As a final matter, we note that the authority to determine the rate and amount of antidumping duties applicable to imported merchandise falls under the jurisdiction of Commerce. See 19 U.S.C. §§ 1673-1675, 1677(1). Within this authority is Commerce’s ability to determine whether an article is within the scope of an antidumping order. See 19 C.F.R. § 351.225. Thus, CBP has a ministerial role in liquidating antidumping duties and merely follows Commerce’s instructions when assessing and collecting said duties. See Mitsubishi Electronics America, Inc. v. United States, 44 F.3d 973, 977 (Fed. Cir. 1994). Because DMC has failed to establish a prima facie case to overcome the presumption of correctness, CBP’s assessment of the candles and their petroleum wax content stands. Pursuant to Commerce’s instructions, candles with a petroleum wax content that averages 0.3% +/-0.1% falls within the scope of the Antidumping Duty Order on petroleum wax candles from the People’s Republic of China. Therefore, such candles are subject to an antidumping duty rate of 108.3%.
HOLDING:
Liquidation of the entry at issue in Protest number 0901-08-100187 was proper and consistent with the Department of Commerce’s instructions. Thus, the Protest is DENIED in full.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the Protestant no later than 60 days from the date of this letter. Sixty days from the date of the decision, the Office International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division