H305367

HQ H305367 September 20, 2024 OT:RR:CTF:EPDR H305367 ND Category: Entry Center Director Agriculture and Prepared Products Center of Excellence and Expertise One World Trade Center Suite 50.200 New York, NY 10007 Attn: Pamela Jorgensen, Import Specialist Re: Application for Further Review of Protest Number 3801-19-100535; Honey from the People’s Republic of China; A-570-863; Antidumping Duties; Deemed Liquidation; 19 U.S.C. § 1504(d); Voluntary Reliquidation; 19 U.S.C. § 1501 Dear Center Director: The purpose of this decision is to address the Application for Further Review (“AFR”) of Protest Number 3801-19-100535, filed by CPNA International Ltd. (“CPNA”) on June 27, 2019, regarding the assessment of antidumping duties (“ADD”) pursuant to ADD case number A-570-863. This protest is designated as the lead protest and addresses the identical facts, issues, and arguments presented in protest numbers 2704-19-103775, 3501-19-100105, 3001-19-100313, 2904-19-100039, 3801-19-100481, and 1303-19-100290. FACTS: The instant protest concerns imports of honey from the People’s Republic of China (“China”). Certain honey products from China are subject to the ADD order in case number A-570-863 (“ADD Order”). See Notice of Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order; Honey From the People’s Republic of China, 66 Fed. Reg. 63,670 (Dec. 10, 2001); see also Notice of Final Determination of Sales at Less Than Fair Value; Honey From the People’s Republic of China 66 Fed. Reg. 50,608 (Oct. 4, 2001). The publication of the ADD Order included the U.S. Department of Commerce’s (“Commerce”) critical circumstances determinations for honey “exported/manufactured” by several entities, including Zhejiang Native Produce and Animal By-Products Import and Export Corp. (“Zhejiang”) for whom Commerce assigned a “[manufacturer]/producer exporter” specific ADD cash deposit rate of 25.88%. Id.; see also Message No. 1353202 (Dec. 19, 2001) On September 3, 2003, CPNA entered a single entry, number XXX-XXXX808-1, of honey from China. According to the Automated Commercial Environment (“ACE”), the manufacturer of the subject honey was Zhejiang, and CPNA paid ADD cash deposits at the 25.88% rate attributed to Zhejiang as “exporter/manufacturer.” Thereafter, U.S. Customs and Border Protection (“CBP”) suspended liquidation of entry number XXX-XXXX808-1 pursuant to the ADD Order and notified CPNA of the suspension on September 20, 2003. Following publication of the ADD Order, Zhejiang and other entities challenged several aspects of the ADD Order in several different litigations at the United States Court of International Trade (“CIT”), with three cases of relevance to entry number XXX-XXXX808-1. In each of these three litigations, the CIT imposed an injunction enjoining liquidation of certain entries, leading to confusion over the proper treatment of entry number XXX-XXXX808-1 at issue in this protest. We review each of these litigations and accompanying injunctions below. Zhejiang Native & Animal By-Prods. Imp. & Exp. Co. v. United States, Court No. 02-00064 (“Zhejiang I”). This litigation arose from a challenge by several entities, including Zhejiang, of the International Trade Commission’s (“ITC”) affirmative material injury determination that preceded Commerce’s final determination of sales of honey from China at less than fair value (“LTFV”). The CIT initially stayed the matter on May 16, 2002, lifted the stay, and then issued a second stay on January 30, 2008, pending the final disposition of Zhejiang Native Produce & Animal By-Prods. Imp. & Exp. Group Corp. v. United States, Court No. 02-00057 (detailed below). On February 5, 2015, after the final disposition of Court No. 02-00057 by the U.S. Court of Appeals for the Federal Circuit (“Federal Circuit”), the CIT issued a temporary restraining order (“TRO”) enjoining liquidation of entries (1) subject to the administrative determination published in 66 Fed. Reg. 63,670 (Dec. 10, 2001); (2) produced, exported, or imported from China by Zhejiang, among other entities; and (3) entered or withdrawn from warehouse for consumption between May 11, 2001, and February 5, 2015. See Commerce Message No. 5041302 (Feb. 10, 2015). On April 27, 2015, following the TRO, the CIT issued a preliminary injunction enjoining liquidation of entries of honey from China that were (1) subject to the administrative determination published in 66 Fed. Reg. 63,670 (Dec. 10, 2001); (2) entered on or after May 11, 2001; and (3) exported or imported by Zhejiang, among other entities. See Zhejiang Native Produce & Animal By-Prods. Imp. & Exp. Corp. v. United States, 61 F. Supp. 3d 1358 (Ct. Int’l Trade 2015). In its decision, the CIT first noted that “liquidation has been suspended from the publication in the Federal Register of [Commerce’s] preliminary determination in May 2001.” Id. at 1367; see also Notice of Preliminary Determination of Sales at Less Than Fair Value: Honey From the People’s Republic of China, 66 Fed. Reg. 24,101 (May 11, 2001). The CIT further noted that “[w]ithout the [TRO] entered by the court . . . plaintiffs’ merchandise entered on or after May 11, 2001[,] would have become subject to liquidation on December 1, 2014[,] when the Federal Circuit issued its mandate [in Court No. 02-00057].” Id. at 1367. Finally, the CIT noted that “[i]t was not until the Federal Circuit issued its mandate on October 10, 2014, following a final decision in plaintiffs’ challenge to Commerce’s LTFV determination [Court No. 02-00057], that liquidation of the entries was no longer enjoined and the merchandise became susceptible to liquidation.” Id. at 1363. In accordance with the injunction, Commerce directed CBP to continue suspending liquidation of subject entries, including entry number XXX-XXXX808-1. See Message No. 5128303 (May 8, 2015). On March 22, 2017, the CIT issued a final decision in Zhejiang I, dissolving both the TRO and injunction in the process. See Zhejiang Native Produce & Animal By-Prods. Imp. & Exp. Corp. v. United States, 217 F. Supp. 3d 1363 (Ct. Int’l Trade 2017). In response to the CIT’s decision, Commerce issued an informational message notifying CBP of the dissolution of all applicable court-ordered injunctions and instructing that it would issue separate liquidation instructions for CBP to liquidate subject entries. See Message No. 8173301 (June 22, 2018). Commerce subsequently issued liquidation instructions in Message No. 8351309, dated December 17, 2018, directing CBP to liquidate entries of honey from China exported by Zhejiang and entered, or withdrawn from warehouse, for consumption between December 1, 2002, and November 30, 2003, at an ADD rate of 34.81%. Zhejiang Native Produce & Animal By-Prods. Imp. & Exp. Group Corp. v. United States, Court No. 02-00057 (“Zhejiang II”). This litigation arose from a challenge by several entities, including Zhejiang, of Commerce’s amended final determination of sales of honey from China at LTFV, specifically (1) Commerce’s calculation of ADD margins, (2) Commerce’s critical circumstances determination, and (3) the reliability of certain sources of valuation data. See Zhejiang Native Produce & Animal By-Prod. Imp. & Exp. Corp. v. United States, 28 C.I.T. 1427, 1428 (2004); 66 Fed. Reg. 63,670 (Dec. 10, 2001); 66 Fed. Reg. 50,608 (Oct. 4, 2001). On March 10, 2003, the CIT issued a preliminary injunction enjoining liquidation of entries of honey from China that remained unliquidated as of March 11, 2003, and that (1) were exported to or imported into the United States by Zhejiang, (2) were the subject of an affirmative critical circumstances finding and entered on or after February 10, 2001, and (3) were the subject of a negative critical circumstances finding and were entered on or after May 11, 2001. See Commerce Message No. 3078201 (Mar. 19, 2003). Commerce thus instructed CBP to continue suspending liquidation of entries subject to this injunction until applic

As an initial matter, we note that this protest meets the criteria for further review. Specifically, it raises questions of fact concerning the liquidation of entry numbers XXX-XXXX808-1, which has not been ruled upon by the Commissioner of CBP or his designee or by the Customs courts. See 19 C.F.R. § 174.24(b). Additionally, we note that this 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 or reliquidation. CBP first reliquidated entry number XXX-XXXX808-1 on January 11, 2019. CBP reliquidated the entry once again on March 22, 2019. CBP reliquidated the entry for a final time on April 5, 2019. CPNA filed its protest on June 27, 2019, within 180 days of all three dates.ADD properly assessed by CBP are generally not protestable because CBP’s role in liquidating entries of merchandise subject to an antidumping order is “merely ministerial.” Mitsubishi Elec. Am., Inc. v. United States, 44 F.3d 973, 977 (Fed. Cir. 1994). The courts have consistently held that CBP’s role in the ADD process is simply to follow Commerce’s instructions in collecting deposits of estimated duties and in assessing ADD, together with interest, at the time of liquidation. Id.Pursuant to 19 U.S.C. § 1673b(d)(2), once Commerce makes an affirmative final determination of dumping, it orders CBP to suspend liquidation of all entries of merchandise subject to the determination which are entered, or withdrawn from warehouse, for consumption on or after the later of–(A) the date on which notice of the determination is published in the Federal Register, or(B) the date that is 60 days after the date on which notice of the determination to initiate the investigation is published in the Federal Register . . . See also 19 C.F.R. § 158.58 (“[T]he Center director will suspend liquidation on merchandise entered . . . . for consumption, on or after the date of publication of the ‘Notice of Preliminary Affirmative Antidumpi