OT:RR:CTF:EPDR H341177 JHS
Center Director
Industrial and Manufacturing Materials
Center for Excellence and Expertise
U.S. Customs and Border Protection
Buffalo Field Office
Buffalo, NY 14225
Attn.: Sarah Lum, Import Specialist
RE: Application for Further Review of Protest No. 460124137563; United Porte Inc.;
Antidumping and Countervailing Duty Orders; Certification; Certain Hardwood Plywood
Products and Veneered Panels from the People’s Republic of China
Dear Center Director:
This is in response to the application for further review of protest no. 460124137563,
received by our office on August 7, 2024. United Porte Inc. (“United Porte”) protests your
office’s liquidation of entry no. xxxxxxxx480 as subject to antidumping and countervailing duty
(“AD/CVD”) orders on certain hardwood plywood products and veneered panels from the
People’s Republic of China (“China”) (collectively, “the Orders”). See Certain Hardwood
Plywood Products from the People’s Republic of China: Amended Final Determination of Sales
at Less Than Fair Value, and Antidumping Duty Order, 83 Fed. Reg. 504 (Jan. 4, 2018); Certain
Hardwood Plywood Products from the People’s Republic of China: Countervailing Duty Order,
83 Fed. Reg. 513 (Jan. 4, 2018). Specifically, United Porte protests your office’s determination
that the entry of hardwood plywood assembled in the Socialist Republic of Vietnam (“Vietnam”)
is subject to the Orders because of defective importer and exporter certifications. See Certain
Hardwood Plywood Products From the People’s Republic of China: Final Scope Determination
and Affirmative Final Determination of Circumvention of the Antidumping and Countervailing
Duty Orders, 88 Fed. Reg. 46,740 (July 20, 2023) (“Circumvention Determination”). We have
considered the points raised by your office and the protestant. Our decision is set forth below.
FACTS:
On September 3, 2023, United Porte entered a shipment containing hardwood plywood
from Vietnam. The entry was a type “01,” applicable to formally entered goods which are not
subject to AD/CVD. However, effective July 20, 2023, hardwood plywood completed in
Vietnam using hardwood plywood inputs (face veneer, back veneer, and/or either an assembled
core or individual core veneers) manufactured in China, or Chinese hardwood plywood inputs
(assembled cores, multi-ply core panels, or individual core veneers) combined in Vietnam with
other inputs (face and/or back veneers) manufactured in Vietnam or third countries, and
subsequently exported to the United States, may be subject to the Orders. 88 Fed. Reg. 46740.
In the Circumvention Determination for hardwood plywood completed in Vietnam, the U.S.
Department of Commerce (“Commerce”) established specific certification requirements that
must be complied with in order to demonstrate that such hardwood plywood was not assembled
or produced utilizing Chinese inputs. Consequently, importers of hardwood plywood completed
in Vietnam must prepare and maintain importer and exporter certifications and supporting
documentation to demonstrate they are not subject to the Orders. Id. For hardwood plywood
entered for consumption on or after July 20, 2023, Commerce specified that “importers should
complete the required certification at or prior to the date of entry summary, and exporters should
complete the required certification and provide it to the importer at or prior to the date of
shipment.” Id.
On December 14, 2023, U.S. Customs and Border Protection (“CBP”) issued a Request
for Information on CBP Form 28, which requested documentation from United Porte, including
importer and exporter certificates, to determine whether the hardwood plywood was subject to
the Orders. On March 14, 2014, Commerce issued Message No. 4074419 which reiterated that
an “importer certification must be completed, signed, and dated by the time of filing of the entry
summary for the relevant importation; and the exporter certification must be completed, signed,
dated and provided to the importer by the time of shipment.” On March 28, 2024, CBP issued a
proposed Notice of Action on CBP Form 29, stating that United Porte’s entry of hardwood
plywood completed in Vietnam will be found subject to the Orders unless United Porte provides
the requisite certificates demonstrating they are not subject to the Orders within 20 days. United
Porte requested an extension which CBP granted, thereby according United Porte an additional
20 days to provide these certificates. On May 2, 2024, United Porte submitted the requested
certificates, but CBP concluded they were not timely dated as required by the Circumvention
Determination and Message No. 4074419. The certificates were dated April of 2024, which is
after both the time of shipment and time of filing the entry summary for the September of 2023
entry filed by United Porte. Accordingly, on June 28, 2024, CBP liquidated the entry as subject
to the Orders.
On July 15, 2024, United Porte protested the liquidation on the grounds that CBP should
accept the certifications it provided, despite these certifications not complying with the
requirements Commerce established in the Circumvention Determination. United Porte
conceded that it was “unaware of the certification requirements” established by Commerce for
hardwood plywood completed in Vietnam, but nevertheless endeavored to provide these
certifications. United Porte argues that such certifications can be accepted in the course of a
protest, or otherwise perfected post-entry for consumption, based on: CBP’s acceptance of North
American Free Trade Agreement (“NAFTA”) preference certificates during protest, and, a
decision by the Court of International Trade that in certain circumstances a document
substantiating reduced duty treatment for imported merchandise may be provided “at any time
prior to liquidation.” United Porte cites to Headquarters Ruling Letter (“HQ”) H058767, dated
2
September 25, 2009, and Gulfstream Aerospace Corp. v. United States, 981 F. Supp. 654 (Ct.
Int’l Trade 1997), as the basis for its argument. United Porte maintains that despite the untimely
dated certifications it provided to CBP, its entry of hardwood plywood completed in Vietnam is
not subject to the Orders.
Pursuant to a request from United Porte’s counsel, CBP sought clarification from
Commerce as to whether an importer or exporter certificate that was not timely signed and dated,
as indicated in the relevant instructions, could still be considered valid. On April 3, 2025,
Commerce responded by affirming that unless such certificates complied with the relevant
instructions they were not valid. Commerce explained that: “The certification requirements
should be implemented as specified by the instruction. Importers cannot amend certifications to
provide missing information. As explained by the instruction, the certifications are required to
be uploaded into the DIS at the time of entry.” On July 14, 2025, CBP met with United Porte’s
counsel to discuss the instructions provided by Commerce.
ISSUE:
Whether CBP properly assessed AD/CVD on United Porte’s entry of hardwood plywood.
LAW AND ANALYSIS:
As an initial matter, we find that, pursuant to 19 U.S.C. § 1514(c)(3)(A), this protest was
timely filed on July 15, 2024, within 180 days after the June 28, 2024, liquidation date. We also
find that, pursuant to 19 U.S.C. § 1514(a), a protestable issue was raised by challenging CBP’s
decision regarding the assessment antidumping duties. Finally, pursuant to 19 C.F.R. §
174.24(b), we find that further review of this protest is warranted because it involves a question
of law which has not previously been ruled upon, specifically whether the importer certifications
must be completed, signed, dated, and provided by the time of filing the entry to be valid, and
whether the exporter certifications must be completed, signed, dated, and provided to the
importer by the time of shipment to be valid.
Generally, assessed AD/CV duties properly applied by CBP are not protestable, because
“Customs has a merely ministerial role in liquidating antidumping duties under 19 U.S.C. §
1514(a)(5).” 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 provided by Commerce. Id.
Commerce instructed CBP on how to enforce the Orders through the Circumvention
Determination and Message No. 4074419. According to the instructions Commerce provided,
the importer certification “must be completed, signed, and dated by the time of filing of the entry
summary for the relevant importation” and the exporter certification “must be completed, signed,
dated and provided to the importer by the time of shipment.” Commerce Message No. 4074419
(Mar. 14, 2024); see also Circumvention Determination, 88 Fed. Reg. at 46,743. If the importer
did not provide such certificates, CBP was instructed to suspend the liquidation of the entries and
collect cash deposits for the AD/CV duties. The failure to maintain such certifications would
result in a “de facto determination that the entries are in scope of the orders.” Commerce
Message No. 4074419; see also Circumvention Determination, 88 Fed. Reg. at 46,742
3
(“[I]mporters should complete the required certification at or prior to the date of entry summary,
and exporters should complete the required certification and provide it to the importer at or prior
to the date of shipment.”).
As applied to the protest, the instructions Commerce provided are clear — the importer
certificates were required to be completed, signed, dated, and provided by the time of filing the
entry summary and the exporter certifications were required to be completed, signed, dated, and
provided to the importer by the time of shipment. United Porte entered the merchandise on
September 3, 2023. United Porte provided the certificates on May 2, 2024, which were signed
and dated in April 2024. In contravention of the explicit instructions in the Circumvention
Determination and Commerce Message No. 4074419, the certificates provided by United Porte
were signed and dated several months after the entry summary was filed for entry no.
xxxxxxxx480 on September 3, 2023, and were thus untimely. The consequence of these
certificates being untimely is equally clear from Commerce’s instructions — a “de facto
determination that the entries are in scope of the orders.” Commerce Message No. 4074419.
Nevertheless, at United Porte’s request, CBP sought clarification from Commerce as to whether
such certificates still be considered valid if signed and dated after the specified deadlines, or if
provided after the specified deadlines, or if amended to provide missing information. In
response, Commerce instructed CBP to ensure the “certification requirements [are] implemented
as specified by the instruction. Importers cannot amend certifications to provide missing
information. As explained by the instruction, the certifications are required to be uploaded into
the DIS at the time of entry.” In accordance with Commerce’s explicit and unambiguous
instructions, we find that CBP properly concluded the certificates provided by United Porte were
untimely and invalid for purposes of demonstrating the imported hardwood plywood was not
subject to the Orders. As a consequence, we find that CBP properly liquidated entry no.
xxxxxxxx480 as subject to the Orders.
United Porte’s reliance on HQ H058767, dated September 25, 2009, and Gulfstream
Aerospace Corp. v. United States, 981 F. Supp. 654 (Ct. Int’l Trade 1997) (“Gulfstream”), to
argue such certificates can be provided during protest or otherwise perfected prior to liquidation
is thus mistaken. In HQ H058767, the exporter failed to timely respond to CBP’s requests for
information during the NAFTA verification process, as required by 19 C.F.R. § 181.72. CBP
held that NAFTA preference certificates may be submitted during protest pursuant to 19 C.F.R. §
174.28, which permits consideration of additional arguments and evidence during protest.
Similarly, in Gulfstream, the Court of International Trade determined that an importer was
entitled to relief from duties pursuant to 19 C.F.R. § 10.112 despite not filing the requisite
certifications at the time of entry. The cited regulation, 19 C.F.R. § 10.112, concerns the
requirements for articles which are conditionally free or subject to a reduced duty rate – it has no
bearing whatsoever on articles subject to an AD/CVD order. Neither HQ H058767 nor
Gulfstream have any relevance to this protest because CBP is statutorily bound to implement
Commerce’s liquidation instructions. CBP “has a statutory responsibility to fix the amount of
duty owed on imported goods. As part of that responsibility, Customs is both empowered and
obligated to determine . . . whether goods are subject to existing antidumping or countervailing
duty orders.” Sunpreme Inc. v. United States, 946 F.3d 1300, 1317 (internal citations omitted);
see also Mukand Int’l, Ltd. v. U.S., 502 F.3d 1366, 1367, 220 Fed. Appx. 984 (Fed. Cir. 2007)
(holding that CBP is “responsible for applying and enforcing” the orders and instructions issued
4
by Commerce). The regulations at issue in HQ H058767 and Gulfstream are thus inapplicable to
CBP’s statutory determination of whether merchandise is subject to an AD/CVD order. Here,
Commerce has clearly instructed CBP to liquidate entries hardwood plywood completed in
Vietnam as subject to the Orders if valid certificates are not submitted. See Commerce Message
No. 4074419; see also Circumvention Determination, 88 Fed. Reg. at 46,742. CBP has therefore
properly assessed AD/CVD on United Porte’s entry of hardwood plywood from Vietnam.
HOLDING:
CBP properly assessed AD/CVD on United Porte’s entry of hardwood plywood.
Therefore, this protest should be DENIED 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,
Yuliya A. Gulis, Director
Commercial and Trade Facilitation Division
5