• Type : • HTSUS :
  •  Related:   H155957   

OT:RR:CTF:ER H192395 ASL

Port Director
U.S. Customs and Border Protection
POE – Savannah (Service)
1 E. Bay St.
Savannah, GA 31401

Attn: Ms. Jessilynn Pilato, Supervisory Import Specialist

Re: Application for Further Review of Protest No: 1703-11-100293; Hand Trucks from China; Antidumping Order A-570-891-004

Dear Port Director,

The purpose of this correspondence is to address the Application for Further Review (“AFR”) of Protest Number: 1703-11-100293, dated May 2, 2011, which we received May 3, 2011. The protesting party is Tractor Supply Company of Texas (“Tractor Supply”).

FACTS:

Tractor Supply made the following entries of hand trucks from the People’s Republic of China (“PRC”) that were subject to antidumping duty order number A-570-891:

Date of Entry Entry Number ADD Case Number  12/15/2007 xxxxxxxx0267 A-570-891  12/29/2007 xxxxxxxx1968 A-570-891  02/16/2008 xxxxxxxx0464 A-570-891  04/13/2008 xxxxxxxx8921 A-570-891   See Notice of Antidumping Duty Order: Hand Trucks and Certain Parts Thereof From the People's Republic of China, 69 Fed. Reg. 70122 (Dec. 2, 2004). Tractor Supply’s shipments of hand trucks were manufactured in the PRC by Qindao Taifa Group Co., Ltd. (“Taifa”). Tractor Supply purchased the hand trucks from a third party, Tricam Industries Asia Ltd. (“Tricam”), an entity based in Hong Kong. Taifa was not the invoicing party, nor was it listed as the foreign shipper on the sea waybills. Rather, Tricam was identified as the invoicing party on the commercial invoices and packing lists, as well as identified as the shipper on the sea waybills. On November 12, 2004, the U.S. Department of Commerce (“Commerce”) issued an amended final determination finding that hand trucks from the PRC were being sold, or likely to be sold, at less than fair value within the United States. See Amended Final Determination of Sales at Less Than Fair Value: Hand Trucks and Certain Parts Thereof From the People's Republic of China, 69 Fed. Reg. 65410 (Nov. 12, 2004). Subsequently, on December 2, 2004, Commerce issued the antidumping duty order for hand trucks from the PRC. The antidumping duty order instructed Customs and Border Protection (“CBP”) to require cash deposits for PRC hand trucks produced or exported by Taifa equal to the specific weighted-average antidumping duty margin of 26.49 percent. See Notice of Antidumping Duty Order: Hand Trucks and Certain Parts Thereof From the People's Republic of China, 69 Fed. Reg. 70122 (Dec. 2, 2004). The PRC-wide rate was set at 383.60 percent. Id. On May 15, 2007, Commerce published the final results of an administrative review of Taifa’s entries for the period of review from December 1, 2004, to November 30, 2005. See Hand Trucks and Certain Parts Thereof From the People's Republic of China: Final Results of Administrative Review and Final Results of New Shipper Review, 72 Fed. Reg. 27287 (May 15, 2007). In the final results, Commerce stated that the cash deposit rate for all non-PRC exporters will be the rate applicable to the PRC exporter that supplied that non-PRC exporter. Id.; see also, Message No. 7144206 (May 24, 2007). At the time, Taifa’s rate was 26.49 percent. Therefore, Tractor Supply’s entries had Taifa’s cash deposit rate of 26.49 percent. Id.

On May 25, 2010, Commerce published its final results of the antidumping duty administrative review, for the period of review from December 1, 2007, to November 30, 2008. Hand Trucks and Parts Thereof from the People's Republic of China: Final Results of Antidumping Duty Administrative Review, 75 Fed. Reg. 29314 (May 25, 2010). Taifa was not reviewed. On June 10, 2010, Commerce sent CBP liquidation instructions for entries exported by the PRC-wide entity during this period, stating that CBP should assess antidumping duties equal to the PRC-wide rate of 383.60 percent of the entered value of all shipments of hand trucks from the PRC exported by the PRC-wide entity. See Message No. 0161304 (June 10, 2010). On June 15, 2010, Commerce sent CBP liquidation instructions for entries exported by Taifa for this period stating that CBP should assess antidumping duties equal to the cash deposit rate at the time of entry for hand trucks from the PRC exported by Taifa. See Message No. 0166303 (June 15, 2010). Taifa’s cash deposit rate was 26.49 percent.

On November 5, 2010, CBP liquidated the entries in accordance with Message No. 016304 and assessed an antidumping duty equal to the PRC-wide rate of 383.60 percent. On May 3, 2011, Tractor Supply filed a protest with the port protesting the liquidation of its entries at the PRC-wide rate, arguing the liquidation of the entries was not executed in accordance with Commerce’s instructions. Tractor Supply asserts that CBP failed to properly follow Commerce’s liquidation instruction and seeks reliquidation of these entries under the cash deposit rate of 26.49 percent. The port argued that the entries were properly liquidated because while the hand trucks were produced by Taifa, they were not exported by Taifa, but by Tricam, and thus, should have received the PRC-wide rate. On December 13, 2013, CBP spoke with protestant’s counsel about the protest and permitted the protestant to submit additional information clarifying its argument. On December 17, 2013, counsel for protestant submitted additional information asserting that the exporter was a non-PRC exporter and as such should receive the manufacturer’s rate.

ISSUES:

Whether CBP properly followed Commerce’s liquidation instructions?

LAW AND ANALYSIS:

We note initially that the instant protest was timely filed, within 180 days from the date of liquidation. 19 U.S.C. § 1514(c)(3)(A). Liquidation of Tractor Supply’s entries was made on November 5, 2010, and this protest was filed on May 3, 2010, within 180 days. Additionally, further review is warranted because “the protest involves questions of law or fact which have not been ruled upon by the Commissioner of Customs or his designee, or by the Customs courts." 19 C.F.R. § 174.24(b). Specifically, protestant asserts that the entries were liquidated at the wrong rate. We agree that further review is warranted as the protest involves questions of law or fact that at the time of filing, had not previously been ruled upon. Accordingly, the criteria for further review by this office are satisfied per 19 C.F.R. §§ 174.24(a), 174.24(b) and 174.26(b)(1).

Generally, assessed antidumping duties properly applied by CBP are not protestable, because "Customs has a merely ministerial role in liquidating antidumping duties." Mitsubishi Electronics America, Inc. v. United States, 44 F.3d 973, 977 (Fed. Cir. 1994). However, inasmuch as Liberty protests the liquidation, i.e., disputes the application by CBP of Commerce's liquidation instructions, this matter is protestable. See Xerox Corp. v. United States, 289 F.3d 792 (Fed. Cir. 2002).

Tractor Supply argues that the liquidation of its entries at the PRC-wide rate of 383.60 percent was contrary to Commerce’s instructions. Instead, Tractor Supply seeks reliquidation of the entries at the manufacturer’s rate, which was 26.49 percent, because Tricam, as a non-PRC exporter that does not have its own rate, should receive the rate of its PRC supplier. See H155957 (March 29, 2013) (finding that in cases of third-country exporters that do not have their own rates the third-country exporter should receive the rate of its PRC supplier). Because the hand trucks were exported by Tricam, a third-party from a country other than the PRC, and pursuant to Commerce’s instructions for this period of review, we find that Tractor Supply’s entries should be reliquidated at the manufacturer’s rate of 26.49 percent.

None of the facts referenced above are in dispute here. Commerce issued two liquidation instructions that are relevant for these entries. The first liquidation instruction, which the port followed, stated that:

For all shipments of hand trucks and parts thereof from the People’s Republic of China (PRC) exported by the PRC-wide entity (A-570-891-000) entered, or withdrawn from warehouses, for consumption during the period 12/01/2007 through 11/30/2008, assess an antidumping liability equal to 383.60 percent of the entered value, except for those exported by Qindao Taifa Group Co., LTD. or Since Hardware (Guangzhou) Co., Ltd.

Message No. 0161304 (June 10, 2010). The second liquidation instruction stated that:

For all shipments of hand trucks and parts thereof from the People’s Republic of China (PRC) exported by the firms listed below and entered, or withdrawn from warehouse, for consumption during the period 12/01/2007 through 07/27/2008, assess an antidumping liability equal to the cash deposit or bonding rate at the time of entry.

Exporter Qindao Taifa Group Co., Ltd.

Message No. 0166303 (June 15, 2010). The first instruction applies to entries of hand trucks that were exported by the PRC-wide entity. The second instruction applies to entries where the hand trucks were exported by Taifa. The port determined the former instruction to be applicable because while the hand trucks were produced by Taifa, they were not exported by Taifa, but by Tricam. In support of its position, the port relied on two messages from Commerce and a correspondence with CBP headquarters that it believes substantiated its claim that applying an antidumping duty equal to 383.60 percent of the entered value was appropriate. The messages stated that when the producer was Taifa, but the exporter was another PRC-wide entity, the PRC-wide rate applied. However, CBP did not address the fact that the exporter was actually a non-PRC company.

As the liquidation instructions and inquiries were unclear as to which rate was applicable to entries that were exported from a third country, our office inquired with Commerce for a clarification as to which instruction would apply. On May 9, 2012, we received an answer from Commerce, which stated that Tricam should receive Taifa’s rate “because in cases of third-country exporters that do not have their own rates (as is the case here), they receive the rate of the PRC supplier.” Based on the information provided by Commerce, Taifa’s antidumping duty rate was 26.49 percent. See Notice of Antidumping Duty Order: Hand Trucks and Certain Parts Thereof From the People's Republic of China, 69 Fed. Reg. 70122 (Dec. 2, 2004). Tricam, as the third-country exporter of the Taifa hand trucks, had a cash-deposit rate equal to Taifa’s. See Hand Trucks and Certain Parts Thereof From the People's Republic of China: Final Results of Administrative Review and Final Results of New Shipper Review, 72 Fed. Reg. 27287 (May 15, 2007); Message No. 7144206 (May 24, 2007). Therefore, in accordance with Commerce’s instructions, Tractor Supply’s entries of Taifa’s hand trucks, exported by Tricam, should have been liquidated at the cash-deposit rate of 26.49 percent. Because the entry should have been liquidated at the cash-deposit rate, there is no need to address the protestant’s other claim that Taifa knew its sales of hand trucks to Tricam were bound for the United States.

HOLDING:

Tractor Supply’s entries should have been liquidated at the rate of 26.49 percent and protest 1703-11-100293 should be GRANTED. Therefore, the entries are to be reliquidated at the cash deposit rate at the time of entry.

No later than 60 days from the date of this letter, the Office of 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