OT:RR:CTF:EPDR H336409 IPW
Center Director Base Metals
610 S. Canal Street
Room 300
Chicago, IL 60607
Attn.: Jessica Brubach, Import Specialist
RE: Application for Further Review of Protest No. 5501-23-106828; Brighton-Best International, Inc.; Antidumping and Countervailing Duties; Steel threaded rods.
Dear Center Director:
The above-referenced Protest was forwarded to this office for further review and was received on November 8, 2023. We have considered the points raised by your office and the Protestant. Our decision follows.
FACTS:
On May 6, 2021, Brighton-Best International Inc. (“BBI” or “Protestant”) entered the merchandise subject to this protest. U.S. Customs and Border Protection (“CBP”) determined that four lines of the entry were subject to antidumping and countervailing (“AD/CV”) orders on steel threaded rods from the People’s Republic of China (“China”). See Alloy and Certain Carbon Steel Threaded Rod From the People's Republic of China: Preliminary Affirmative Determination of Sales at Less Than Fair Value, Postponement of Final Determination and Extension of Provisional Measures, 84 Fed. Reg. 50379 (Sept. 25, 2019); Carbon and Alloy Steel Threaded Rod From the People's Republic of China: Preliminary Affirmative Countervailing Duty Determination and Alignment of Final Determination With Final Antidumping Duty Determination, 84 Fed. Reg. 36578 (July 29, 2019).
Lines 281, 282, 283, and 584 on the entry refer to three variants of “sleeve anchor hexagonal nut” and a “square head bolt.” The sleeve anchor hexagonal nuts are partially threaded rods fitted into a metal sleeve with the threaded end capped with a hexagonal nut and the unthreaded end that tapers outward at a wider diameter than the threaded portion of the rod. The square head bolt is a partially threaded rod with a square head.
On December 8, 2022, CBP liquidated the entry with AD/CV duties. On April 21, 2023, BBI protested the liquidation claiming that the merchandise is not in scope of the AD/CV orders because they are not threaded rods.
ISSUE:
Whether CBP properly assessed antidumping duties on the entries of merchandise under the terms of the order covering threaded steel rods from China.
LAW AND ANALYSIS:
As an initial matter, we find that the instant Protest was 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. BBI filed the protest on April 21, 2023, which is within 180 days of the liquidation on December 8, 2022. We also find that this protest meets the criteria for further review. Pursuant to 19 C.F.R. § 174.24(b), this protest involves questions of law and fact which have not previously been ruled upon.
Generally, assessed AD/CV 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 the Department of Commerce (“Commerce”) to the appraised value as determined by CBP. This “ministerial” role does not exclude CBP from interpreting ambiguous scope language, but rather “necessarily entails evaluating both the product and the order.” Sunpreme Inc. v. United States, 946 F.3d 1300, 1320 (Fed. Cir. 2020). While CBP cannot “affect the scope” of an antidumping order, CBP must make factual findings to determine “what the merchandise is, and whether it is described in an order” to assess the appropriate antidumping duty. Xerox Corp. v. United States, 289 F.3d at 794-95 (Fed. Cir. 2002). CBP concludes merchandise falls within the “common meaning” of the scope language based on “observable physical characteristics.” Sunpreme, Inc. v. United States, 190 F. Supp. 3d 1185, 1202 (Ct. Int’l Trade 2016). 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.” Id.
This case involves the orders issued by Commerce on steel threaded rods. Alloy and Certain Carbon Steel Threaded Rod From the People's Republic of China: Preliminary Affirmative Determination of Sales at Less Than Fair Value, Postponement of Final Determination and Extension of Provisional Measures, 84 Fed. Reg. 50379 (Sept. 25, 2019); Carbon and Alloy Steel Threaded Rod From the People's Republic of China: Preliminary Affirmative Countervailing Duty Determination and Alignment of Final Determination With Final Antidumping Duty Determination, 84 Fed. Reg. 36578 (July 29, 2019). The scope of the orders is described, in relevant part, to cover the following:
The merchandise covered by the scope of this investigation is alloy and certain carbon steel threaded rod. Alloy and certain carbon steel threaded rod are certain threaded rod, bar, or studs, of carbon or alloy steel, having a solid, circular cross section of any diameter, in any straight length. Alloy and certain carbon steel threaded rod are normally drawn, cold-rolled, threaded, and straightened, or it may be hot-rolled. In addition, the alloy and certain carbon steel threaded rod, bar, or studs subject to this investigation are non-headed and threaded along greater than 25 percent of their total actual length. A variety of finishes or coatings, such as plain oil finish as a temporary rust protectant, zinc coating (i.e., galvanized, whether by electroplating or hot-dipping), paint, and other similar finishes and coatings, may be applied to the merchandise. . . .
Alloy and Certain Carbon Steel Threaded Rod From the People's Republic of China: Preliminary Affirmative Determination of Sales at Less Than Fair Value, Postponement of Final Determination and Extension of Provisional Measures, 84 Fed. Reg. 50379 (Sept. 25, 2019) (emphasis added). Headed products are outside the scope of the orders. In a previous scope ruling, Commerce found that a concrete wedge anchor was outside of the scope of the order as a headed product. See Mid-State Bolt & Nut Company, Inc., Final Scope Ruling memorandum: Certain Steel Threaded Rod from the People's Republic of China, Oct. 14, 2009. In that case, the requester argued that the threaded rod was headed because the “unthreaded portion…is necked down to a smaller diameter for a short distance and then tapers outward to the full diameter at the end.” Id. Commerce agreed it was headed and therefore outside the scope of the order. Id.
The entry in this case contains sleeve anchor hex nuts and square head bolts. The sleeve anchor hex nuts, as observed by schematics and pictures provided by BBI, closely match the concrete wedge anchor in Commerce’s scope ruling, both having unthreaded ends that taper outward to the full diameter of the product. As such, the sleeve anchor hex nut is a headed product. The square head bolt, having a head, is also a headed product. Accordingly, the subject articles are headed products and are not in the scope of the orders.
HOLDING:
CBP improperly assessed antidumping duties on the entries of merchandise under the terms of the order covering steel threaded rods from China. Therefore, the protest is 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