OT:RR:CTF:EPDR H326949 ND
Center Director
Pharmaceuticals, Health and Chemicals
Center of Excellence and Expertise
U.S. Customs and Border Protection
One World Trade Center, Suite 50.200
New York, NY 10007
Attn: Olga A. Konshina, Import Specialist
Re: Application for Further Review of Protest Number 390122126322; Antidumping Duties; Xanthan Gum from the People’s Republic of China; A-570-985; Deemed Liquidation; 19 U.S.C. § 1504(d).
Dear Center Director,
The purpose of this decision is to address the application for further review (“AFR”) of protest number 390122126322, filed by Tate & Lyle Ingredients LLC (“Tate”) on February 2, 2022, regarding the assessment of antidumping duties (“ADD”) pursuant to the ADD order in case A-570-985 (“ADD order”).
FACTS:
Tate entered five entries of xanthan gum between October 3, 2016, and February 18, 2017. Xanthan gum from the People’s Republic of China (“PRC” or “China”) is subject to the ADD order in A-570-985. See Xanthan Gum from the People’s Republic of China: Amended Final Determination of Sales at Less Than Fair Value and Antidumping Order, 78 Fed. Reg. 43,143 (July 19, 2013). Tate does not dispute that its entries are subject to the ADD order. Tate’s protest is limited to whether the entries subject to the ADD order have deemed liquidated. According to the entry summaries (U.S. Customs and Border Protection (“CBP”) Form 7501), the imported xanthan gum was manufactured by Chinese company Neimenggu Fufeng Biotechnologies Co., Ltd. (“Fufeng”). The entry summaries for entry numbers XXX-XXXX256-6, XXX-XXXX797-0, and XXX-XXXX077-2 further reflect that the country of export was Germany, whereas the entry summaries for entry numbers XXX-XXXX000-3 and XXX-XXXX898-5 reflect that the country of export was Great Britain. According to the Automated Commercial Environment (“ACE”), Tate deposited the following ADD cash deposits at the time of entry:
Entry
Entry Date
ADD Cash Deposit Rate
XXX-XXXX797-0
10/3/16
70.61%
XXX-XXXX256-6
11/1/16
12.9%
XXX-XXXX077-2
12/12/16
12.9%
XXX-XXXX000-3
1/31/17
12.9%
XXX-XXXX898-5
2/18/17
12.9%
According to Tate, Omya GmbH (“Omya”) is the exporter associated with entry numbers XXX-XXXX797-0 and XXX-XXXX256-6, XXX-XXXX077-2, Tate & Lyle Food Systems G.C Hahn & Co. Ltd. (“Hahn”) is the exporter associated with entry numbers XXX-XXXX000-3 and XXX-XXXX898-5, and Fufeng is the PRC supplier and manufacturer of the imported xanthan gum.
On October 2, 2017, the United States Department of Commerce (“Commerce”) provided the following instructions to CBP:
2. . . liquidate all entries for all firms except those listed in paragraph 3 and assess antidumping duties on merchandise entered, or withdrawn for consumption at the cash deposit or bonding rate in effect on the date of entry.
Product: xanthan gum
Country: PRC
Case number: A-570-985
Period: 07/01/2016 through 06/30/2017
3. Entries of merchandise of the firms listed below should not be liquidated until specific instructions are issued. Continue to suspend liquidation of all entries of merchandise exported by the listed firms entered, or withdrawn from warehouse, for consumption during the period 07/01/2016 through 06/30/2017 . . . .
Company: Neimenggu Fufeng Biotechnologies Co., Ltd./Inner Mongolia Fufeng Biotechnologies Co., Ltd./Shandong Fufeng Fermentation Co., Ltd./Xinjiang Fufeng Biotechnologies Co., Ltd.
Case number: A-570-985-001 or A-570-985-011
Entries may also have been made under A-570-985-000 . . . .
Commerce Message No. 7275319. Commerce directed CBP to liquidate entries of xanthan gum from the PRC entered between July 1, 2016, and June 30, 2017, for all firms except those listed in paragraph 3 of these instructions. Neither Omya nor Hahn were entities named in paragraph 3 of these instructions. Commerce further directed CBP to continue suspending the liquidation of entries exported by specific exporters between July 1, 2016, and June 30, 2017, including Fufeng. In the relevant cash deposit instructions, Commerce assigned Fufeng an exporter or producer specific ADD cash deposit rate of 12.9% and a PRC-wide ADD cash deposit rate of 154.07%. See Commerce Message No. 3205302 (July 24, 2013).
Thereafter, Commerce published the amended final results of administrative review for entries occurring between July 1, 2016, and June 30, 2017. See Xanthan Gum from the People’s Republic of China: Amended Final Results of Antidumping Duty Administrative Review; 2016-2017, 86 Fed. Reg. 26,905 (May 18, 2021). On June 28, 2021, Commerce issued specific liquidation instructions for shipments of xanthan gum from the PRC produced and exported by Fufeng entered between July 1, 2016, and June 30, 2017. See Commerce Message No. 1179402. These liquidation instructions notified CBP that “[n]otice of the lifting of suspension of liquidation of entries of subject merchandise covered by this message occurred with the publication of the amended final results of administrative review.” Id; see also Xanthan Gum from the People’s Republic of China: Amended Final Results of Antidumping Duty Administrative Review; 2016-2017, 86 Fed. Reg. 26,905 (May 18, 2021). On August 6, 2021, CBP liquidated Tate’s entries, assessing ADD at the PRC-wide rate pursuant to Message Number 1179402. According to the Port, Commerce issued the applicable liquidation instructions in Message 1179402, dated June 28, 2021, not in Message 3205302, dated October 2, 2017.
Tate filed protest number 390122126322 on February 2, 2022, alleging that CBP incorrectly assessed ADD on its entries at the PRC-wide rate of 154.07%. According to Tate, its entries deemed liquidated at the rate it asserted at the time of entry because CBP failed liquidate the entries within six months of Commerce’s October 2, 2017, liquidation instructions in Message Number 7275319. Tate specifically argues that the entries deemed liquidated at the cash deposit rate of 12.9% owed at the time of entry pursuant to Commerce Message 3205302. Therefore, Tate believes that CBP’s August 6, 2021, manual liquidation was legally invalid and seeks a refund of the overpayment of ADD. According to the Port, it properly liquidated Tate’s entries within six months of the liquidation instructions in Message Number 1179402.
Tate has provided various documentation to support its claim that Omya is the exporter associated with entry numbers XXX-XXXX797-0 and XXX-XXXX256-6 from Great Britain. Of relevance here, Tate provided the following entry and transactional documentation:
Entry Summary. Identifies Tate as the importer of record, Fufeng as the manufacturer, China as the country of origin, and Germany as the exporting country. The merchandise identified on the entry summary is 17,500 kg of xanthan gum.
Certificate of Origin. Identifies Omya as the consignor and shipper, Tate as the consignee and recipient, China as the country of origin, and Fufeng as the manufacturer. The document also indicates that 17,500 kg of xanthan gum is being shipped.
Commercial Invoice. Names Greenhealth International Co. Ltd. (“GHI”) on the letterhead and as the beneficiary, purportedly indicating that GHI sold the subject xanthan gum to Tate. Identifies Tate on the document but does not indicate Tate’s role in the transaction. Further identifies Hamburg as the exporting city, China as the country of origin and Fufeng as the manufacturer of the 17,500 kg of xanthan gum.
Packing List. Mirrors the commercial invoice: names GHI in the letterhead and identifies Tate on the document. Further identifies China as the country of origin and Fufeng as the manufacturer of the 17,500 kg of xanthan gum.
Bill of Lading. Identifies Omya as the shipper, Tate as consignee, and Hamburg as the port of loading.
Arrival Notice – Invoice. Identifies Omya as the shipper, Tate as the consignee, Hamburg as the port of loading.
Tate further alleges that Omya is the exporter associated with entry number XXX-XXXX077-2 from Great Britain. Tate provided an entry summary and commercial invoice for entry number XXX-XXXX077-2, which both reflect the same information outlined above, but did not provide the additional documentation listed above.
Additionally, Tate has provided various documentation to support its claim that Hahn is the exporter associated with entry numbers XXX-XXXX000-3 and XXX-XXXX898-5 from Germany. Of relevance here, Tate provided the following entry and transactional documentation:
Entry Summary. Identifies Tate as the importer of record, Fufeng as the manufacturer, China as the country of origin, and Great Britain as the exporting country. The merchandise identified on the entry summary is 17,500 kg of xanthan gum.
Commercial Invoice. Identifies Tate on the letterhead and as the purported recipient of 17,500 kg of xanthan gum, and names Tate and Hahn as the two commercial entities involved in the transaction. Identifies Fufeng on the document, purportedly as the manufacturer of the xanthan gum.
Kuehne + Nagel Booking Confirmation. Identifies Hahn as the shipper and Tate as the consignee. Identifies the port of lading as Liverpool, the port of discharge as New York, and the place of delivery as Chicago. The description of the transported goods is 17,500 kg of xanthan gum. We note that Tate only provided this document with respect to entry number XXX-XXXX000-3.
ISSUE:
Whether Tate’s entries deemed liquidated per 19 U.S.C. § 1504(d), and if so, what is the proper ADD rate?
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 or fact which have not been ruled upon with respect to entry numbers XXX-XXXX797-0, XXX-XXXX256-6, XXX-XXXX077-2, XXX-XXXX000-3, and XXX-XXXX898-5 by the Commissioner of CBP or his designee or by the Customs courts. See 19 C.F.R. § 174.24(b).
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 manually liquidated the entries at issue on August 6, 2021. Tate filed its protest on February 2, 2022, within 180 days of that liquidation.
According to Tate, its entries deemed liquidated at the rate it asserted at the time of entry because CBP failed to liquidate the entries within six months of Commerce’s October 2, 2017, liquidation instructions in Message Number 7275319. However, the Port determined that Message Number 7275319 did not apply, and instead liquidated Tate’s entries at the PRC-wide rate of 154.07% pursuant to Message Number 1179402.
19 U.S.C. § 1504(d) requires that CBP liquidate entries within six months of 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 by the importer of record. 19 U.S.C. § 1504(d); see also Fujitsu Gen. Am., Inc. v. United States, 283 F.3d 1364, 1376 (Ct. App. Fed. Cir. 2002). “In order for a deemed liquidation to occur, (1) the suspension of liquidation that was in place must have been removed; (2) Customs must have received notice of the removal of the suspension; and (3) Customs must not liquidate the entry at issue within six months of receiving such notice.” Id.
The key issue, therefore, is to determine whether the instructions in Message Number 7275319, dated October 2, 2017, directed CBP to liquidate Tate’s entries. If the instructions in Message Number 7275319 applied to Tate’s entries, then these instructions constituted notice to CBP of the lifting of the suspension of liquidation of Tate’s entries, from which date CBP would have had six months to liquidate the entries pursuant to 19 U.S.C. § 1504(d). If, however, Commerce lifted the suspension of liquidation through publication of the amended final results of administrative review, then CBP had six months from the publication of the final results on May 18, 2021, or until November 18, 2021, to liquidate Tate’s entries.
In Commerce Message 7275319 (Oct. 2, 2017), Commerce directed CBP to liquidate entries of xanthan gum from the PRC entered, or withdrawn for consumption between July 1, 2016, and June 30, 2017, at the cash deposit rate in effect on the date of entry, except for entries of merchandise exported by the firms specifically identified in the instructions. While Fufeng was named as an exported for whom liquidation was to remain suspended, neither Omya nor Hahn were identified in this list. Therefore, if Fufeng was the exporter of the imported xanthan gum, then the entries should have remained suspended. If, on the other hand, either Omya or Hahn was the exporter of the imported xanthan gum, then CBP was required to liquidate Tate’s entries within six months of these instructions.
To determine the exporter of the subject xanthan gum, we look to the entry documentation that Tate provided to CBP. First, we look to entry numbers XXX-XXXX797-0, XXX-XXXX256-6, and XXX-XXXX077-2. Tate alleges that these entries were exported by Omya from Great Britain. With respect to entry numbers XXX-XXXX797-0 and XXX-XXXX256-6, the commercial invoices and packing lists are printed on GHI letterhead, identify Hamburg as the exporting city, name Tate in the document, and identify Fufeng as the manufacturer. The entry summaries similarly identify Germany as the exporting country. Moreover, the bills of lading and the document titled “Arrival Notice – Invoice” identify Omya as the shipper and Hamburg as the port of loading. Finally, the document titled “Certificate of Origin” similarly identifies Omya as the consigner and shipper. The evidence, viewed in its totality, indicates that Omya is the exporter of the xanthan gum with respect to these entries. While some evidence may suggest that GHI is the exporter rather than Omya, this is immaterial as the evidence unequivocally indicates that Fufeng was merely the manufacturer or supplier of the imported xanthan gum. With respect to entry number XXX-XXXX077-2, Tate only provided an entry summary and commercial invoice. However, the entry summary and commercial invoice mirror those provided for entry numbers XXX-XXXX797-0 and XXX-XXXX256-6. Accordingly, the liquidation instructions in Message Number 7275319 (October 2, 2017) apply to entry numbers XXX-XXXX797-0, XXX-XXXX256-6, and XXX-XXXX077-2.
Second, we look to entry numbers XXX-XXXX000-3 and XXX-XXXX895-5. Tate alleges that these entries were exported by Hahn from Germany. With respect to entry numbers XXX-XXXX000-3 and XXX-XXXX895-5, Tate provided an entry summary and commercial invoice. Tate further provided a document titled “Kuehne + Nagel Booking Confirmation” for entry number XXX-XXXX000-3. The entry summaries identify Fufeng as the manufacturer of the xanthan gum and Great Britain as the exporting country. The commercial invoice is printed on Tate letterhead, and names Tate and Hahn as the two commercial entities involved in the transaction. The invoice also identifies the merchandise as “xanthan gum 200 mesh, [Fufeng],” purportedly indicating that Fufeng is the manufacturer or supplier of the imported xanthan gum. Finally, the document titled “Kuehne + Nagel Booking Confirmation” identifies Hahn as the shipper, Tate as the consignee, Liverpool as the port of lading, and Chicago as the place of delivery. The evidence, viewed in its totality, indicates that Hahn is the exporter of the xanthan gum with respect to these entries. Therefore, the liquidation instructions in Message Number 7275319 also apply to these entry numbers XXX-XXXX000-3 and XXX-XXXX895-5.
Having determined that Commerce directed CBP to liquidate the subject entries in Message Number 7275319, we can now determine whether Tate’s entries deemed liquidated. First, for deemed liquidation to occur, the suspension of liquidation must have been removed. See Fujitsu, 283 F.3d at 1364. On September 13, 2017, Commerce published the notice of initiation of administrative review for the 07/2017 anniversary month. See Initiation of Antidumping and Countervailing Duty Administrative Reviews, 82 Fed. Reg. 42,974 (Sept. 13, 2017). According to Commerce, this publication constituted the lifting of suspension of liquidation in place for Tate’s entries. Id.; see also Commerce Message Number 7275319 (Oct. 2, 2017). Second, once suspension is removed, CBP must have received unambiguous and public notice of the removal of suspension. In this case, CBP received notice of the lifting of suspension through liquidation instructions from Commerce in Message Number 7275319 on October 2, 2017.
Finally, Customs must not liquidate the entry at issue within six months of receiving notice of the lifting of suspension of liquidation from Commerce. Based on the above, CBP received notice of the lifting of suspension of liquidation for the protested entries on October 2, 2017, and therefore had six months, or until April 2, 2018, to liquidate Tate’s entries. CBP liquidated Tate’s entries on August 6, 2021, well beyond the April 2, 2018, liquidation deadline. Accordingly, the entry numbers XXX-XXXX797-0, XXX-XXXX-256-6, XXX-XXXX077-2, XXX-XXXX000-3, and XXX-XXXX898-5 deemed liquidated by operation of law on April 2, 2018, at the ADD rate that Tate asserted pursuant to 19 U.S.C. § 1504(d).
HOLDING:
Based on the above, entry numbers XXX-XXXX797-0, XXX-XXXX-256-6, XXX-XXXX077-2, XXX-XXXX000-3, and XXX-XXXX898-5 deemed liquidated on April 2, 2018, at the rate asserted by Tate at the time of entry. Specifically, entry number XXX-XXXX797-0 deemed liquidated at an ADD rate of 70.61%, while entry numbers XXX-XXXX-256-6, XXX-XXXX077-2, XXX-XXXX000-3, and XXX-XXXX898-5 deemed liquidated at an ADD rate of 12.9%. Accordingly, the protest 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,
For Yuliya A. Gulis, Director
Commercial & Trade Facilitation Division