PRO 4
OT:RR:CTF:ER
H284348 ABH
Port Director
Port of Los Angeles
U.S. Customs & Border Protection
301 E. Ocean Blvd.
Long Beach, CA 90802
Attn: Minerva Barragan, Senior Import Specialist
RE: Bassett Mirror Company, Inc.; Application for Further Review of Protests 2704-16-100768 and 2704-16-100792; Antidumping Duties; Wooden Bedroom Furniture from the People’s Republic of China
Dear Port Director:
The purpose of this correspondence is to address the application for further review (“AFR”) of Protests 2704-16-100768 and 2704-16-100792, dated June 21, 2016 and June 24, 2016 respectively, filed by Bassett Mirror Company, Inc. (“Bassett”), regarding the assessment of antidumping duties under the terms of the order covering wooden bedroom furniture from the People’s Republic of China in Case A-570-890 (“WBF Order”). A meeting was held with Bassett on May 11, 2017.
FACTS:
Between January 2014 and March 2015, Bassett made 22 entries of chests containing model numbers 8311-766D, T2782-766D, T2784-766D, T2782-990D, 8311-226AD, A2287, A2232, and A2873D. The U.S. Customs and Border Protection (“CBP”) Port of Los Angeles assessed antidumping duties on the entries pursuant to the WBF Order. The entries liquidated between December 2015 and January 2016. Bassett filed Protest Number 2704-16-100768 on June 21, 2016 and Protest Number 2704-16-100792 on June 24, 2016.
In the past, Bassett sought several scope rulings with regard to specific models of chests and the U.S. Department of Commerce (“Commerce”) issued scope rulings with regard to those enumerated models. See Memorandum from Thomas Martin to Christian Marsh regarding Wooden Bedroom Furniture from the People’s Republic of China: Scope Ruling on Bassett Mirror Company, Inc.’s Reflections and Murano Chests (Dep’t of Commerce Apr. 30, 2015) (“Chests Scope Ruling”); Memorandum from Patrick O’Connor to Christian Marsh regarding Wooden Bedroom Furniture from the People’s Republic of China: Scope Ruling on Bassett Mirror Company, Inc.’s Stand-Alone Occasional Chests (Dep’t of Commerce Aug. 16, 2016) (“Occasional Chests Scope Ruling”); Memorandum from Patrick O’Connor to Christian Marsh regarding Wooden Bedroom Furniture from the People’s Republic of China: Scope Ruling on Bassett Mirror Company, Inc.’s Specialty Occasional Table Group Chests (Dep’t of Commerce Aug. 17, 2016) (“Specialty Chests Scope Ruling”).
In this case, Bassett protests the assessment of antidumping duties and states that the pieces are not within the scope of the WBF Order. Bassett notes that the suffixes “D” and “AD” on the model numbers identify a direct shipment to the Company’s customer and do not indicate a physical difference from the model number without the suffix. Your office agrees that model number 8311-766D is out of scope pursuant to U.S. Department of Commerce (“Commerce”) Message Number 6250307 (Sept. 6, 2016). The Specialty Chests Scope Ruling specifically addressed model number 8311-766 and determined that the chest was outside the scope of the WBF Order. Commerce instructed the ports in Message Number 6250307 that model number 8311-766 (chest) was outside the scope of the WBF Order. Accordingly, your office agrees that those invoiced items indicated as model number 8311-766 are outside the scope. With regard to other chest models at issue that were not specifically enumerated by Commerce as outside the scope of the WBF Order, your office disagrees with Bassett.
Thus, at issue are model numbers T2782-766D, A2232, A2287, A2873D, 8311-226AD, T2782-990D, and T2784-766D. According to the Protests, model number T2782-766 is part of an occasional table group and measures 40”x19”x36”. Bassett indicates that model numbers A2232, A2287, A2873D are stand-alone hall chests that are decorative pieces. Model number A2232 measures 39.75”x17.75”x32”. Model number A2287 measures 40”x18”x34”. Model number A2873D measures 38”x18”x34”. Bassett states that model number 8311-226AD is a chairside chest that is part of a specialty occasional group and measures 29”x17”x30” and is covered with antique mirror accented by hand-applied metallic silver leaf glass on the front and sides. It has one drawer and one adjustable shelf behind two doors. Bassett indicates that model number 8311-226AD was designed to sit beside a sofa, between two chairs, and between two doors or windows. The case core (top, sides and legs) is rubberwood. The substrate or base is medium-density fiberboard. The piece is part of the Borghese occasional group collection which does include bedroom furniture. Basset states that the bedroom and occasional groups each have their own distinctive designs. Bassett indicates that model number T2782-990D has a cube of 10 cubic feet and measures 30”x20”x29” and that model number T2784-766 measures 40”x19”x34”.
ISSUE:
Whether CBP properly assessed antidumping duties on the entries of chests under the terms of the order covering wooden bedroom furniture from China?
LAW AND ANALYSIS:
As an initial matter, we note that the instant Protests were timely filed. Pursuant to 19 U.S.C. § 1514(c)(3)(A), a party must file a protest within 180 days after the date of liquidation. CBP liquidated the relevant entries between December 28, 2015 and January 15, 2016. Bassett filed its Protests on June 21, 2016 and June 24, 2016, which is within the 180-day deadline.
Generally, assessed antidumping duties properly applied by CBP are not protestable, because “Customs has a merely ministerial role in liquidating antidumping duties.” Mitsubishi Elecs. Am., Inc. v. United States, 44 F.3d 973, 977 (Fed. Cir. 1994). CBP’s ministerial role is to follow the liquidation instructions and to compute the duty by applying the antidumping duty rate set by Commerce to the appraised value as determined by CBP. “Customs, incident to its ‘ministerial’ function of fixing the amount of duties chargeable, must make factual findings to determine ‘what the merchandise is, and whether it is described in an order’ and must decide whether to apply the order to the merchandise. LDA Incorporado v. United States, 79 F. Supp. 3d 1331, 1339 (Ct. Int’l Trade 2015). Pursuant to its ministerial function, however, CBP cannot “affect the scope of the order.” Id.
“[W]here the importer claims that Customs erred as a matter of fact by including its goods within the scope of the order, Customs’ determination is the proper subject for a protest. LDA Incorporado v. United States, 978 F. Supp. 2d 1359, 1367 (Ct. Int’l Trade 2014) (citing Xerox Corp. v. United States, 289 F.3d 792, 795 (Fed. Cir. 2002). On the other hand, if the scope of the order is unambiguous and CBP follows Commerce’s instructions, there is no decision that is made by CBP that would be protestable. See Mitsubishi Elecs. Am., Inc. v. United States, 44 F.3d 973, 977 (Fed. Cir. 1994) (holding that CBP has a ministerial role in liquidating antidumping duties and “cannot modify Commerce’s determinations, their underlying facts, or their enforcement”); HQ H258302 (Sept. 3, 2015) (finding that “because the scope of the antidumping and countervailing duty orders was clear and CBP acted in accordance with Commerce’s instructions, CBP acted in its ministerial capacity when it liquidated its entries” and the protest “failed to raise a protestable issue”).
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.” Sunpreme, Inc. v. United States, 190 F. Supp. 3d 1185, 1202 (Ct. Int’l Trade 2016). The inquiry “comes down to whether CBP can determine that merchandise falls within the common meaning of the scope language based upon observable physical characteristics.” Id. If the importer believes that CBP has made a mistake of fact and does not want its goods to be covered by the order, the remedy is to seek a scope ruling. See LDA Incorporado, 79 F. Supp. 3d at1342 n.12. The importer can request that CBP extend the time for liquidation if there is good cause. 19 C.F.R. § 159.12(a)(1)(ii).
At issue in this case is the WBF Order issued by Commerce in January 2005. Notice of Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Wooden Bedroom Furniture from the People’s Republic of China, 70 Fed. Reg. 329, 329 (Dep’t of Commerce Jan. 4, 2005). The scope of the order described the covered merchandise as follows:
The product covered by the order is wooden bedroom furniture. Wooden bedroom furniture is generally, but not exclusively, designed, manufactured, and offered for sale in coordinated groups, or bedrooms, in which all of the individual pieces are of approximately the same style and approximately the same material and/or finish. The subject merchandise is made substantially of wood products, including both solid wood and also engineered wood products made from wood particles, fibers, or other wooden materials such as plywood, oriented strand board, particle board, and fiberboard, with or without wood veneers, wood overlays, or laminates, with or without non-wood components or trim such as metal, marble, leather, glass, plastic, or other resins, and whether or not assembled, completed, or finished.
The subject merchandise includes the following items: (1) Wooden beds such as loft beds, bunk beds, and other beds; (2) wooden headboards for beds (whether stand-alone or attached to side rails), wooden footboards for beds, wooden side rails for beds, and wooden canopies for beds; (3) night tables, night stands, dressers, commodes, bureaus, mule chests, gentlemen's chests, bachelor's chests, lingerie chests, wardrobes, vanities, chessers, chifforobes, and wardrobe-type cabinets; (4) dressers with framed glass mirrors that are attached to, incorporated in, sit on, or hang over the dresser; (5) chests-on-chests \1\, highboys \2\, lowboys \3\, chests of drawers \4\, chests \5\, door chests \6\, chiffoniers \7\, hutches \8\, and armoires \9\; (6) desks, computer stands, filing cabinets, book cases, or writing tables that are attached to or incorporated in the subject merchandise; and (7) other bedroom furniture consistent with the above list.
The scope of the Petition excludes the following items: (1) Seats, chairs, benches, couches, sofas, sofa beds, stools, and other seating furniture; (2) mattresses, mattress supports (including box springs), infant cribs, water beds, and futon frames; (3) office furniture, such as desks, stand-up desks, computer cabinets, filing cabinets, credenzas, and bookcases; (4) dining room or kitchen furniture such as dining tables, chairs, servers, sideboards, buffets, corner cabinets, china cabinets, and china hutches; (5) other non-bedroom furniture, such as television cabinets, cocktail tables, end tables, occasional tables, wall systems, book cases, and entertainment systems; (6) bedroom furniture made primarily of wicker, cane, osier, bamboo or rattan; (7) side rails for beds made of metal if sold separately from the headboard and footboard; (8) bedroom furniture in which bentwood parts predominate \10\; (9) jewelry armories \11\; (10) cheval mirrors \12\ (11) certain metal parts \13\ (12) mirrors that do not attach to, incorporate in, sit on, or hang over a dresser if they are not designed and marketed to be sold in conjunction with a dresser as part of a dresser-mirror set.
Id. (emphasis added). “Chests of drawers” and “chests” are specifically covered by the scope of the WBF Order. In the scope of the WBF Order, chests of drawers are described as “typically a case piece containing drawers for storing clothing.” Id. at n.4. Moreover, a chest is described in the scope as “typically a case piece taller than it is wide featuring a series of drawers and with or without one or more doors for storing clothing. The piece can either include drawers or be designed as a large box incorporating a lid.” Id. at n.5. The one commonality in these descriptions is that the chests are suitable for storing clothing. Specialty Chests Scope Ruling at 16.
With regard to the chests, and as discussed above, Bassett sought scope rulings pertaining to twelve specific models of chests. In Message Numbers 6250307 and 6250309, dated September 6, 2016, Commerce issued liquidation instructions pursuant to the Occasional Chests Scope Ruling and the Specialty Chests Scope Ruling issued in August 2016. The liquidation instructions specifically named the chests at issue and their model numbers and stated that the “chests identified above are not within the scope of the antidumping duty order on wooden bedroom furniture from the PRC.” Commerce instructed that for “all entries of the . . . chests identified above that remain unliquidated . . . CBP shall terminate suspension and liquidate entries of [those] chests . . . .” Message Numbers 6250307 & 6250309. Pursuant to Message Number 6250307, as discussed above, the port approved the Protests with regard to model number 8311-766D, which had been specifically determined to be outside the scope of the order.
With regard to the remaining models – T2782-766D, A2232, A2287, A2873D, 8311-226AD, T2782-990D, and T2784-766D – CBP properly determined that the chests fell within the unambiguous language of the scope. Bassett does not factually argue that they are not chests or that they are specifically excluded. Rather, Bassett argues they are similar to models that Commerce has determined to be outside the scope and seeks CBP to apply the same analysis to the models entering the United States that have not been subject to a scope ruling request. Commerce issued its scope ruling based on an analysis of several factors including size, decoration, and the seller’s intent to sell the pieces as non-bedroom furniture. See e.g., Occasional Chests Scope Ruling at 11-16. Commerce does not consider a single factor or objective dimension to be dispositive. See Specialty Chests Scope Ruling at 18 (finding that although the limited height of the drawers indicated that it would not typically be considered a chest appropriate for storing clothing further analysis was required because there was evidence that the chest had been advertised in a bedroom setting).
Such analysis by CBP of the numerous factors applied by Commerce, as sought by Bassett, would infringe upon Commerce’s authority to determine that a particular type of merchandise is within the class or kind of merchandise described in an existing finding of dumping and would potentially cause CBP to impermissibly alter the scope. See Sandvik v. United States, 957 F. Supp. 276 (Ct. Int’l Trade 1997), aff’d 164 F.3d 596, 598 (Fed. Cir. 1998). To do so would exceed CBP’s ministerial authority to factually determine whether based on observable physical characteristics Bassett’s chests fall outside the WBF Order. Further, upon request by CBP Headquarters, Commerce confirmed that Message Numbers 6250307 and 6250309 were drafted narrowly to apply to the models specifically enumerated and should not be construed to reflect a broad exclusion of merchandise constituting certain dimensions or features, and that in such instances a scope ruling request should be requested. Accordingly, because CBP has not erred as a matter of fact that the chests fall under the unambiguous language of the WBF Order and CBP followed Commerce’s instructions, CBP properly assessed antidumping duties on the entries under the WBF Order.
If Bassett continues to believe that CBP has erred as a matter of fact, Bassett must seek a scope ruling request from Commerce to determine whether the model numbers at issue are outside of the scope of the WBF Order.
HOLDING:
Based on the foregoing, with regard to model numbers T2782-766D, T2784-766D, T2782-990D, 8311-226AD, A2287, A2232, and A2873D, CBP properly assessed antidumping duties on the entries under the WBF Order.
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 of 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 & Trade Facilitation Division