H298167

90 K Street N.E., Washington, DC 20229 U.S. Customs and Border Protection HQ H298167 September 16, 2021 PRO 2 H298167 SMS OT:RR:CTF:ER Port Director U.S. Customs and Border Protection Port of Chicago 5600 Pearl Street Rosemont, IL 60018 Attn: Jeremy Jackson, Supervisory Import Specialist RE: Application for Further Review of Protest Number 3901-2018-100274; Concerning Circular Welded Carbon Quality Steel Pipes from the People’s Republic of China subject to Antidumping Order 570-910 and Countervailing Order 570-911; timeliness of protest Dear Port Director: The following is our decision regarding the Application for Further Review (“AFR”) of Protest Number 3901-2018-100274, filed on behalf of Mercury Products Corp. (“MPC”) on March 2, 2018, which contests the antidumping and countervailing duties assessed on its entry of circular welded pipes (“CWP”). FACTS: On September 27, 2016, MPC imported CWP from the People’s Republic of China (“China”), manufactured by Guangdong Zhida Precision Tube MFR, under entry number xxx-xxxx2451. MPC entered the merchandise as an “01 free and dutiable” consumption entry. Subsequently, on August 4, 2017, U.S. Customs and Border Protection (“CBP”) notified MPC that its entry of CWP was subject to antidumping duties (“ADD”), under AD case number A-570-910, changed the entry to “03 Antidumping/Countervailing (AD/CVD),” and suspended liquidation pending instructions from the Department of Commerce (“Commerce”). See Notice of Final Determination of Sales at Less Than Fair Value and Affirmative Final Determination of Critical Circumstances: Circular Welded Carbon Quality Steel Pipe from People’s Republic of China, 73 Fed. Reg. 31,970 (June 5, 2008). After receiving Commerce instructions on September 29, 2017, CBP liquidated the entry on January 19, 2018, and MPC was assessed antidumping duties (“ADD”), under AD case number A-570-910, and issued a bill by CBP. See Commerce Message Number 7272309 (Sept. 29, 2017). On March 2, 2018, MPC protested the assessment of ADD, including interest. MPC asserted that the CWP it entered is expressly out of the scope of AD case number A-570-910. MPC describes its imported merchandise as “rounded welded pipe produced at American Society for Testing and Materials (“ASTM”) Standard A-513, the Standard Specification for Electric-Resistance- Welded Carbon and Alloy Steel Mechanical Tubing . . . [with] an outside diameter of between 20 and 25 mm, and a wall thickness of 2.1 mm.” In support of its protest MPC provided the commercial invoice which describes the standard grade of the merchandise as ASTM A 513. Additionally, the Bill of Lading and Packing list described the merchandise as “round welded pipe.” Lastly, at the request of Regulations and Rulings, MPC provided mill certificates for its pipes, on March 10, 2019. Based on these descriptions, MPC asserts that the CWP it entered is expressly out of the scope of AD case number 570-910 and CVD case number 570-911. On March 9, 2018, the entry was reliquidated and MPC was assessed countervailing duties (“CVD”), per case number C-570-911, and issued a second bill. See Circular Welded Carbon Quality Steel Pipe from the People’s Republic of China: Final Affirmative Countervailing Duty Determination and Final Affirmative Determination of Critical Circumstances, 73 Fed. Reg. 31,966 (June 5, 2008), see also Commerce Message Number 7275318 (Oct. 2, 2017). On April 27, 2018, the entry was “mistakenly” automatically re-liquidated and MPC was issued a refund of all the ADD charged on January 19, 2018. On May 23, 2018, the Port of Baltimore denied MPC’s protest, indicating ADD was refunded. On July 18, 2018, MPC attempted to amend its March 2, 2018, protest, to dispute the assessment of CVD on the entry and to request a refund of the interest paid on their deposit of ADD. ISSUES: Whether the protest and “supplement” filed thereto, is sufficient under the regulations. Whether CBP properly liquidated MPC’s entry of circular welded pipes. LAW AND ANAYLSIS: Whether the protest and “supplement” filed thereto, is sufficient under the regulations. Pursuant to 19 U.S.C. § 1514, CBP decisions are final unless a protest is timely filed against that decision in accordance with § 1514(c). See 19 U.S.C. § 1514(a). A protest made under § 1514 (a), must be filed in writing, or transmitted electronically through a data interchange system, in accordance with regulations, and “clearly labeled ‘Protest’.” See 19 U.S.C. § 1514(c)(1); 19 C.F.R § 174.12. Additionally, only one protest may be filed for each entry of merchandise, except that where the entry covers merchandise of different categories, a separate protest may be filed for each category. Id at § 1514(c)(1)(d). Specifically, a protest must be filed within 180 days from the date of liquidation or reliquidation. See 19 U.S.C. § 1514(c)(3)(A); 19 C.F.R. § 174.12(e). Additionally, pursuant to 19 C.F.R. § 174.12(f), the date on which a protest is received by the CBP officer, with whom it is required to be filed, is deemed the date on which it is filed. Furthermore, protests may be amended at any time prior to the expiration of the period within which the protest may be filed. See 19 C.F.R. §174.14(a). “The amendment may assert additional claims pertaining to the administrative decision that is the subject of the protest, or may challenge an additional administrative decision relating to the same category of merchandise that is the subject of the protest.” Id. “For the presentation of additional grounds or arguments in support of a valid protest after the applicable protest period set forth in § 174.12(e) has expired, see § 174.28.” Id. Pursuant to § 174.28, “a reviewing officer may consider alternative claims and additional grounds or arguments submitted in writing by the protesting party with respect to any decision which is the subject of a valid protest at any time prior to disposition of the protest.” 19 C.F.R. §174.28. In Headquarters Ruling (“HQ”) H173819, dated September 12, 2014, CBP extensively discussed the calculation of statutory deadlines; we explained that CBP has consistently calculated statutory deadlines starting the day after the triggering event and including the entirety of the deadline day. Furthermore, this calculation standard is consistent with the U.S. Court of International Trade’s (“CIT”) and United States Court of Appeals for the Federal Circuit’s (“USCAFC”) interpretation of statutory limitations. See Rule 6 of the CIT and Rule 26 of the Rules of Practice of the USCAFC (when computing any time period specified in any statute, that does not specify a method of computing time, when the period is stated in days, exclude the day of the event that triggers the period; count every day, including intermediate Saturdays, Sundays, and legal holidays; and include the last day of the period, but if the last day is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next business day). HQ H173819 (Sept. 12, 2014). As previously explained in H173819, CBP and both courts have near identical rules with respect to the computation of time. These rules apply to any statute that does not expressly specify a method of computing time, as is the case with 19 U.S.C. §1514(c). In line with this understanding, the first liquidation of entry number xxx-xxxx2451 occurred on Friday, January 19, 2018, as such, the 180-day statutory deadline clock started the day after, on January 20, 2018, and includes the entirety of the deadline date, Wednesday, July 18, 2018. Thus, the protest was required to be filed and any amendments must have been received by the end of July 18, 2018. In this instance, on January 19, 2018, CBP assessed ADD and interest on MPC’s entry of CWP. MPC submitted its timely protest on March 2, 2018, and its amendment on July 18, 2019, both within 180 days of the original January 19, 2018, liquidation of entry number xxx-xxxx2451. Additionally, pursuant to 19 U.S.C. § 1501, a

of several factors including ASTM standard, width, diameter, color, length, labeling, and the lack of hydrostatically testing. See Maquilacero S.A. De C.V. v. United States 256 F. Supp. 3d 1294. Lastly, the CIT and ITC went to great length to discuss that the specific countries involved in the Mexico AD order did not pose a threat to the domestic mechanical tubing industry, which has not been similarly established for China. Accordingly, we do not find that the scope rulings and exceptions pertaining to the Mexico AD order can similarly be treated as identical to the CVD order and subject merchandise at hand. MPC merely relies on its commercial invoice for support to conclude that its tubes should be excluded from the CVD order. MPC does not factually argue that its CWPs are specifically excluded. Rather, MPC argues they are similar to pipes that Commerce has determined to be outside the scope in another order and seeks that CBP apply the same analysis to its CWP entering the United States. The mere fact that an invoice indicates a tube is ASTM A-513 standard is only one piece of Commerce’s analysis and does not factually determine that the CWP that MPC entered are specifically excluded from the scope of the CVD order under protest. Such analysis by CBP of the numerous factors applied by Commerce as sought by MPC, 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 order, 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 MPC’s CWP fall outside the CVD Order.Accordingly, because CBP has not erred as a matter of fact in determining that the CWP falls under the language of the CVD order and CBP followed Commerce’