H301924

HQ H301924 May 9, 2023 OT:RR:CTF:ER H301924 ND Ann Marie Paul, Center Director Industrial and Manufacturing Materials Center of Excellence and Expertise U.S. Customs and Border Protection 301 E Ocean Blvd. Long Beach, CA 70066 Attn: Fernando A. Biscarra, Supervisory Import Specialist Re: Application for Further Review of Protest Number 2704-18-100926; Antidumping Duties; Multilayered Wood Flooring from the People’s Republic of China Dear Center Director: The purpose of this decision is to address the application for further review (“AFR”) of Protest Number 2704-18-100926, filed by Hanover Direct Import Inc. (“Hanover”) on May 18, 2018, regarding the assessment of antidumping duties (“ADD”) pursuant to the antidumping duty order in case A-570-970. FACTS: Between January 20, 2015, and November 27, 2015, Hanover entered fifty entries of multilayered wood flooring (“MLWF”) from the People’s Republic of China (“PRC”). According to the Automated Commercial Environment (“ACE”), Hanover was the importer of record and ultimate consignee, and Chinese manufacturer Dalian Penghong Floor Products Co. Ltd (“Penghong”) was the exporter. Hanover deposited ADD at the time of entry pursuant to the ADD order in case A-570-970, MLFW from the PRC. See Multilayered Wood Flooring from the People’s Republic of China: Amended Antidumping and Countervailing Duty Orders, 77 Fed. Reg. 5,484 (Feb. 3, 2012). On July 5, 2017, the United States Department of Commerce (“Commerce”) issued a non-public Message to U.S. Customs and Border Protection (“CBP”), Message Number 7186311, which instructed CBP to liquidate all entries of MLWF from the PRC entered between December 1, 2014, and November 30, 2015, for which Penghong was the exporter. Message 7186311 enumerated ten “imported by or sold to” entities, which are identified as specific importers or customers. These ten entities include Customer X, and each entity has an individual rate at which any subject entries should be liquidated. Id. Commerce additionally instructed CBP to assess ADD at a general specified rate for all shipments of MLWF exported by Penghong and imported by, or sold to, a non-enumerated entity. Id. According to ACE, CBP liquidated Hanover’s fifty entries between November 24, 2017, and May 18, 2018, at the general rate specified for a non-enumerated entity. Hanover filed the present protest, number 2704-18-100926, on May 18, 2018. Hanover initially protested the increased duty rate assessed on forty-eight entries, but amended its protest on June 20, 2018, to include the two additional entries (XXX-XXXX487-6 and XXX-XXXX555-0) liquidated by CBP pursuant to Message 7186311. In its protest, Hanover argues that for all fifty of the protested entries, Customer X was the enumerated entity to which MLWF exported by Penghong was sold. Therefore, Hanover concludes that its entries should have been liquidated at the individual rate Commerce specified for Customer X instead of the general rate applicable to a non-enumerated entity. Hanover asserts the protested entries should be reliquidated accordingly. In support of its argument, Hanover provided various documentation: entry summaries (CBP Form 7501), commercial invoices, packing lists, bills of lading, and Penghong’s U.S. sales database. The documentation identifies Hanover as the importer of record for the protested entries, as well as the ultimate consignee, and Penghong as the exporter of the imported MLWF. The commercial invoices and packing lists are printed on letterhead from Customer X, but do not indicate that any purchase from or by Custom X occurred. Although Hanover does not challenge the deemed liquidation of any entries in its protest, we note that forty-seven of the fifty entries deemed liquidated on January 5, 2018. Only entries (XXX-XXXX919-2, XXX-XXXX995-2, and XXX-XXXX996-0) were liquidated within six months of the liquidation instructions in Commerce Message 7186311 (July 5, 2017). Regulations & Rulings (“RR”) requested additional documentation from Hanover. In response, counsel deKieffer & Horgan, PLLC, provided six commercial invoices from Penghong to Customer X, dated between December 20, 2014, and January 23, 2015. Hanover also submitted an untranslated proof of payment and bank slips, purportedly between Penghong and Customer X. On July 10, 2019, counsel informed RR that it was terminating its representation of Hanover, who had ceased operations. RR has since made several failed attempts to obtain further information from Hanover directly. ISSUE: Whether Hanover’s fifty entries of MLWF were properly liquidated? LAW AND ANALYSIS: As an initial matter, we find that this protest meets the criteria for further review. Pursuant to 19 U.S.C. § 1514(a)(2), a protestable issue was raised by claiming that CBP erred as to the “amount of duties chargeable” upon liquidation of the fifty entries at issue. Pursuant to 19 C.F.R. § 174.24(b), the protest qualifies for further review because it alleges a question of law and fact which has not previously been ruled upon. As concerns the timeliness of this protest, we note that pursuant to 19 U.S.C. § 1514(c)(3)(A), a protest must be filed “within 180 days after” liquidation of the subject entries. Hanover filed protest 2704-18-100926 with respect to forty-eight entries on May 18, 2018. Of these entries, three (XXX-XXXX919-2, XXX-XXXX995-2, and XXX-XXXX996-0) were liquidated on November 24, 2017. Accordingly, Hanover had until Wednesday May 23, 2018, to file a timely protest of these three entries. The remainder of these entries deemed liquidated on January 5, 2018. Accordingly, Hanover had until July 5, 2018, to protest these remaining entries. Hanover’s protest was therefore timely filed on May 18, 2018, within 180 days of the deemed liquidation date for the subject entries. Hanover amended its protest on June 20, 2018, to include two additional entries (XXX-XXXX487-6 and XXX-XXXX555-0) that had deemed liquidated on January 5, 2018. Hanover’s amendment was also timely since it was prior to the July 5, 2018, protest deadline. We note that Hanover did not dispute the deemed liquidation of any entry at issue in this protest. It is further undisputed that the liquidation instructions applicable to all fifty protested entries appear in non-public Message 7186311, issued by Commerce on July 5, 2017. In this Message, Commerce instructed CBP to liquidate all entries of MLWF from the PRC entered between December 1, 2014, and November 30, 2015, for which Penghong was the exporter. Commerce specified distinct ADD rates for MLWF that was “imported or sold to” ten enumerated entities, which include Customer X. Commerce also specified a general rate for exports not imported by or sold to a non-enumerated entity. Hanover asserts that all fifty entries were improperly liquidated because CBP failed to assess ADD at the individual rate specified for MLWF exported by Penghong and imported by, or sold to, Customer X. Hanover argues that CBP improperly instead assessed ADD at the general rate applicable to entities not enumerated by Commerce in the applicable liquidation instructions. Id. In order to qualify for the individual rate applicable to MLWF “imported by or sold to” Customer X, Hanover must establish that each of the protested entries entailed a sale to Customer X. Given that Hanover was the importer of record for the subject entries, only the “sold to” Customer X criteria in Message 7186311 could possibly apply. In Message 7186311, Commerce expressly stated that a commercial invoice was sufficient proof of a sale to one of the enumerated customers. For this reason, we requested additional documentation from Hanover to clarify Customer X’s role in the import transaction and support its claim that it sold the imported MLWF to Customer X. To determine whether a sale to Customer X occurred, CBP has traditionally looked to the documentation filed along with the entry, such as a commercial invoice. For example, in Headquarters Rul

As an initial matter, we find that this protest meets the criteria for further review. Pursuant to 19 U.S.C. § 1514(a)(2), a protestable issue was raised by claiming that CBP erred as to the “amount of duties chargeable” upon liquidation of the fifty entries at issue. Pursuant to 19 C.F.R. § 174.24(b), the protest qualifies for further review because it alleges a question of law and fact which has not previously been ruled upon. As concerns the timeliness of this protest, we note that pursuant to 19 U.S.C. § 1514(c)(3)(A), a protest must be filed “within 180 days after” liquidation of the subject entries. Hanover filed protest 2704-18-100926 with respect to forty-eight entries on May 18, 2018. Of these entries, three (XXX-XXXX919-2, XXX-XXXX995-2, and XXX-XXXX996-0) were liquidated on November 24, 2017. Accordingly, Hanover had until Wednesday May 23, 2018, to file a timely protest of these three entries. The remainder of these entries deemed liquidated on January 5, 2018. Accordingly, Hanover had until July 5, 2018, to protest these remaining entries. Hanover’s protest was therefore timely filed on May 18, 2018, within 180 days of the deemed liquidation date for the subject entries. Hanover amended its protest on June 20, 2018, to include two additional entries (XXX-XXXX487-6 and XXX-XXXX555-0) that had deemed liquidated on January 5, 2018. Hanover’s amendment was also timely since it was prior to the July 5, 2018, protest deadline. We note that Hanover did not dispute the deemed liquidation of any entry at issue in this protest.It is further undisputed that the liquidation instructions applicable to all fifty protested entries appear in non-public Message 7186311, issued by Commerce on July 5, 2017. In this Message, Commerce instructed CBP to liquidate all entries of MLWF from the PRC entered between December 1, 2014, and November 30, 2015, for which Penghong was the exporter. Commerce specified distinct ADD rates for MLWF that was “imported or sold to” ten enumer