Customs Ruling HQ H298171 - Application for Further Review of Protest number 4601-2018-100387; Floor-Standing Metal-Top Ironing Tables from the People’s Republic of China under Antidumping Order A-570-888; Antidumping Duties

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HQ H298171
Sep 29, 2022

Type : • HTSUS :
Related: 966932

LIQ 4; BON 1
OT:RR:CTF:ER
HQ H298171 HvB

Port Director
Port of New York/ Newark NJ
U.S. Customs and Border Protection
1100 Raymond Blvd.
Newark, NJ 07102

Attn: Patrick Calderone, Senior Import Specialist
Amy A. Arnold, Supervisory Import Specialist

Re: Application for Further Review of Protest number 4601-2018-100387; Floor-Standing Metal-Top Ironing Tables from the People’s Republic of China under Antidumping Order A-570-888; Antidumping Duties

Dear Port Director:

The following is our decision regarding the Application for Further Review (“AFR”) of Protest Number 4601-2018-100387, dated February 28, 2018. The protestant, International Fidelity Insurance Company (“IFIC”), contests the antidumping duties (“ADD”) assessed on nineteen entries of floor-standing metal-top ironing tables (“ironing tables”) from the People’s Republic of China (“PRC”). IFIC acted as surety for the importer of record, Polder Inc. (“Polder”).

FACTS:

The protest concerns nineteen entries of floor-standing metal-top ironing tables (“ironing tables”), which are subject to antidumping order A-570-888-001. Polder entered the merchandise between March 29 through July 22, 2006. The entries were described as “ironing boards” and were entered under subheading 9403.20.0011 of the Harmonized Tariff Schedule of the United States (“HTSUS”) and under ADD Case No. A-570-888-001.

On August 10, 2004, the Department of Commerce (“Commerce’”) implemented an ADD order for Case No. A-570-888 and instructed U.S. Customs and Border Protection (“CBP”) in Message No. 4223204 to suspend liquidation of shipments of certain ironing tables entered or withdrawn from warehouse for consumption on or after 02/03/2004.” See also Notice of Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Floor-Standing, Metal-Top Ironing Tables and Certain Parts Thereof from the People’s Republic of China, 69 Fed. Reg. 47,868 (Aug. 6, 2004).

According to Polder’s entry summary documentation, the imported ironing tables were manufactured and exported by Since Hardware (Guangzhou) Co., Ltd. (“Since Hardware”). Specifically, each entry summary package contains a commercial invoice and packing list issued by Since Hardware. These documents were signed by an “Authorized Signature” under Since Hardware’s stamp. Each bill of lading identifies Since Hardware as the shipper/exporter. Additionally, three entry packets contain Delivery Order/Turnover Notices that the carrier sent to the customs broker. This document identifies Since Hardware as the shipper. Eighteen entry summaries include an Importer’s Blanket Statement of Non-Reimbursement of Antidumping Duties which states that the “manufacturer/shipper” is Since Hardware. For each of the nineteen entries, Polder made cash deposits of ADD at 9.47%, which was the rate that Commerce assigned to Since Hardware, as manufacturer and/or exporter in Message No. 4223204. Id.

On August 29, 2006, Since Hardware requested an administrative review of the second administrative review period of the ADD order on ironing tables from the PRC ( “AR2”). Initiation of Antidumping and Countervailing Duty Administrative Reviews, A-570-888, 71 Fed. Reg. 57,465, 57,467 (Sept. 29, 2006). On March 18, 2008, Commerce published the Final Results of AR2 on March 18, 2008. See Floor-Standing, Metal-Top Ironing Tables and Certain Parts Thereof from the People’s Republic of China: Final Results of Antidumping Duty Administrative Review, A-570-888, 73 Fed. Reg. 14,437 (Mar. 18, 2008).

Since Hardware challenged the results of AR2 in the Court of International Trade (“CIT”). On March 25, 2008, the Court of International Trade (“CIT”) issued a preliminary injunction in Home Products Int’l, Inc. v. United States, which enjoined the liquidation of entries of ironing tables that were exported by Since Hardware and entered during the period of August 1, 2005 through July 31, 2006. In response to the CIT’s injunction, on March 28, 2008, Commerce issued Message No. 8088201 to CBP, which included the following instructions to suspend liquidation:

Accordingly, until further notice, do not liquidate entries of subject merchandise which were exported by Since Hardware (Guangzhou) Co., LTD., and entered, or withdrawn from warehouse, for consumption during the period 08/01/2005 through 07/31/2006. Any entries which may be set for liquidation need to be unset immediately. Continue to suspend liquidation of these entries until liquidation instructions are provided.

Message No. 8088201 further instructed CBP to continue to suspend these entries until liquidation instructions were provided. CBP records indicate that the entries at issue continued in suspension status, in accordance with Commerce instructions.

On December 8, 2016, the CIT entered judgment following settlement between the United States and Since Hardware in Home Products Int’l, Inc. v. United States. Id. Accordingly, the injunction to which Message 8088201 referred was dissolved. On January 23, 2017, Commerce sent liquidation instructions to CBP, Message No. 7023303, instructing CBP to liquidate entries of ironing tables and certain parts thereof from the PRC “exported by Since Hardware (Guangzhou) Co., Ltd. (A-570-888-001), entered… during the period 08/01/2005 through 07/31/2006, assess an antidumping liability of 72.29 percent of the entered value.” On June 16, 2017, CBP liquidated the subject entries in accordance with Message No. 7023303. CBP’s demand was mailed to IFIC on September 11, 2017, and IFIC filed its protest on February 28, 2018.

In its protest, IFIC asserts the following. It has found no evidence that Since Hardware “produced and exported” the ironing tables that were imported under the subject entries. IFIC states, therefore, that the 2008 CIT injunction does not apply to the entries since Message No. 888201 enjoined only “exporters.” Accordingly, IFIC asserts that notice of lifting of suspension occurred on March 18, 2008, with the publication of Floor-Standing, Metal-Top Ironing Tables and Certain Parts Thereof from the People’s Republic of China: Final Results of Antidumping Duty Administrative Review,” 73 Fed. Reg. 14,437 (Mar. 18, 2008), as set forth in Message No. 8107209 (April 16, 2008). IFIC argues that the entries deemed liquidated under 19 U.S.C. § 1504(d), six months after March 18, 2008, which would result in no increased duties. IFIC also requests that CBP suspend action on this protest pending a Freedom of Information Act (“FOIA”) appeal.

The port argues that CBP lacks the authority to suspend action on the protest pending the FOIA appeal, citing Headquarters Ruling Letter (“HQ”) 966932, dated Mar. 10, 2004).

ISSUE:

Whether the protested entries deemed liquidated per 19 U.S.C. § 1504(d)?

LAW AND ANALYSIS:

IFIC asserts in their Memorandum that their protest should be suspended pending resolution of their FOIA request for liquidation worksheets and their having an opportunity to review the documentation. CBP does not have statutory or regulatory authority to suspend a protest pending a FOIA request or appeal. Accordingly, IFIC’s request to suspend action on this protest pending its FOIA request must be denied, because, as we stated in HQ 966932, dated March 10, 2004, “there is no provision under which CBP has the authority to ‘stay’ or suspend action on a protest pending the receipt of a response to a request under the Freedom of Information Act (‘FOIA’).” Therefore, CBP lacks the authority to suspend action on IFIC’s protest pending their FOIA request.

As a preliminary matter, this protest was timely filed. Pursuant to 19 U.S.C. § 1514(c)(3)(B), a protest must be filed “within 180 days after but not before – (B) . . . the date of the decision as to which protest is made.” A challenge to CBP’s demand for payment is a challenge to CBP’s “charge” that is protestable. 19 U.S.C. § 1514(a)(3); Hartford Fire Ins. Co. v. United States, 31 C.I.T. 1281, 1286 (2007); 19 C.F.R. § 174.12(e)(3) (“Protests must be filed . . . within 180 days of . . . [t]he date of mailing of notice of demand for payment against a bond in the case of a surety which has an unsatisfied legal claim under a bond written by the surety.”). CBP’s demand was sent to IFIC on September 11, 2017. On February 28, 2018, IFIC timely filed Application for Review/Protest 4601-2018-100387, within the 180-day limitation. The AFR was forwarded to our office for review.

It is the opinion of your office that this protest meets the criteria for further review under 19 C.F.R. § 174.24(b); that this protest alleges questions of law and fact which have not been previously ruled upon, specifically whether the subject entries were subject to the cited court injunction and whether the entries were deemed liquidated by operation of law. 19 C.F.R. § 174.24(b). We agree.

With regard to whether the Protestant has raised a protestable issue, generally, it is well settled that when assessing and collecting ADD, CBP merely follows Commerce’s instructions. See Mitsubishi Electronics America, Inc. v. United States, 44 F.3d 973, 977 (Fed. Cir. 1994). The courts have consistently held that CBP’s role in the antidumping process is simply to follow Commerce’s instructions in collecting deposits of estimated duties and in assessing antidumping duties, together with interest, at the time of liquidation. See Fujitsu Ten Corporation of America v. United States, 21 C.I.T. 104, 107 (1997); and American Hi-Fi International, Inc. v United States, 19 C.I.T. 1340, 1342-43 (1995). In Mitsubishi, the Court held that “CBP has a merely ministerial role in liquidating antidumping duties.” 44 F.3d at 977. Thus, CBP simply applies the antidumping duty rates determined by Commerce to entries of merchandise in accordance with Commerce’s liquidation instructions. Accordingly, CBP must follow Commerce’s instructions with regard to the entries of ironing tables from China at issue in this case.

We note that CBP’s factual findings receive a presumption of correctness pursuant to 28 U.S.C. § 2639(a)(1). Consequently, a protestant bears the “burden to prove by a preponderance of the evidence” that CBP’s findings were incorrect. See Ford Motor Company v. United States, 157 F.3d 849, 855 (Fed. Cir. 1998); Aluminum Co. of America v. United States, 477 F.2d 1396, 1398 (C.C.PA. 1973).

In its protest, IFIC asserts the following: first, there is no evidence that Since Hardware “produced and exported” the ironing tables that were imported under the subject entries. IFIC states that, therefore, the 2008 CIT injunction does not apply to the entries since Message No. 8088201 enjoined only “exporters.” In disputing CBP’s exporter determination, IFIC therefore disputes CBP’s application of Commerce’s liquidation instructions as set forth in Message No. 7023303 (Jan. 23, 2017) and the port’s application of Message 8088201 to the entries at issue. IFIC asserts that notice of lifting of suspension occurred on March 18, 2008, with the publication of Floor-Standing, Metal-Top Ironing Tables and Certain Parts Thereof from the People’s Republic of China: Final Results of Antidumping Duty Administrative Review, 73 Fed. Reg. 14,437 (Mar. 18, 2008), as set forth in Message No. 8107209 (April 16, 2008).

Thus, IFIC’s argument relies on the assumption that the proper notice terminating suspension of liquidation for the relevant entries occurred upon the publication of the AR2 Final Results on March 18, 2008, and that CBP improperly applied Message No. 8088201 to Polder’s entries. However, IFIC has not submitted any evidence to buttress its arguments that the entries imported by Polder were not exported by Since Hardware. The record contains no evidence that would suggest that the entries were shipped by another entity. Moreover, the documentation contained in the entry summaries provide strong evidence that Since Hardware exported the subject merchandise. For example, the commercial invoices and packing lists were issued on Since Hardware’s letterhead. In addition, the bills of lading lists Since Hardware as the “shipper/exporter.” We also note that eighteen entry summary packets contain a signed Importer’s Blanket Statement of Non-Reimbursement of Antidumping Duties which states that the “manufacturer/shipper” is Since Hardware. Accordingly, absent evidence that Polder’s entries of ironing tables were exported by an entity other than Since Hardware, IFIC fails to demonstrate that CBP erred in applying Message No. 8088201 to the subject entries.

Second, IFIC asserts that CBP should have deem liquidated the entries at the rate asserted at the time of entry under 19 U.S.C. § 1504(d), because CBP liquidated more than six months after the notice of the termination of suspension of liquidation. Section 1504(d) of Title 19 requires that CBP liquidate entries within six months after receiving “notice” that a suspension of liquidation of such entries has been removed. If CBP fails to timely liquidate the entries after receiving notice, the entries are “deemed” liquidated at the rate asserted at the time of entry. See Fujitsu Gen. Am., Inc. v. United States, 283 F.3d 1364, 1376 (Fed. Cir. 2002)

Message No. 8088201 (Mar. 28, 2008) advised CBP that the CIT issued a preliminary injunction which enjoined the liquidation of entries of ironing tables that were exported by Since Hardware and entered during the period of August 1, 2005 through July 31, 2006. Accordingly, since Commerce instructed CBP on March 28, 2008, to suspend liquidation of entries of ironing tables exported by Since Hardware pursuant to the CIT’s preliminary injunction, the protested entries could not have deemed liquidated under 19 U.S.C. § 1504(d), six months after March 18, 2008. On January 23, 2017, Commerce instructed CBP to lift suspension of liquidation of the entries and liquidate at the 72.29 percent rate. See Message No. 7023303. CBP liquidated the entries at issue on June 16, 2017 – within six months of the January 23, 2017 notice instructing CBP that suspension of liquidation was lifted for the entries at issue. Accordingly, CBP did not liquidate the entries at issue contrary to 19 U.S.C. § 1504(d). Rather, CBP properly followed Commerce’s instructions and the entries at issue were liquidated as directed and did not deem liquidate by operation of law.

HOLDING:

IFIC’s protest is DENIED in full. Based on the above, CBP properly followed Commerce’s instructions to suspend liquidation pursuant to the CIT’s preliminary injunction because relevant entry summary documentation indicates that Since Hardware exported the merchandise. Further, CBP properly liquidated the entries at issue within the relevant timeframe and CBP did not violate the deemed liquidation provision pursuant to 19 U.S.C. § 1504(d). Finally, CBP properly denied the request to suspend action on this protest pending a possible FOIA appeal.

Sixty days from the date of the decision, the Office of 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,

for Gregory Connor, Acting Director
Commercial & Trade Facilitation Division