H305706

90 K Street N.E., Washington, DC 20229 U.S. Customs and Border Protection HQ H305706 July 20, 2020 LIQ 4-01 OT:RR:CTF:ER H305706 SMS Center Director U.S. Customs and Border Protection Base Metals Center 477 Michigan Ave, Room 200 Detroit, MI 48226 Attn: Monica Dunbar, Senior Import Specialist Re: Request for Internal Advice for Protest Numbers 3001-2016-1000160 and 3001-2016-100161; Antidumping Duties; Certain Steel Nails from the People’s Republic of China under Antidumping Order 570-909 Dear Center Director: This ruling is in response to your request for internal advice dated November 15, 2016, as to the proper assessment of antidumping duties (“ADD”) on S.T.O. Industries, Inc.’s (“S.T.O.”) entries of steel nails, pursuant to the antidumping duty order in case A-570-909, Certain Steel Nails (“CSN”) from Peoples Republic of China (“China” or “PRC”). We note that Protest Number 3001-16-1000161 is the lead protest, and this ruling also addresses the identical arguments presented in Protest Number 3001-16-1000160. FACTS: On June 16, 2008, the U.S. Department of Commerce (“Commerce” or “DOC”) made its final determination that certain steel nails from China are sold at less than fair value and subject to ADD. See Steel Nails from the People's Republic of China: Final Determination of Sales at Less Than Fair Value and Partial Affirmative Determination of Critical Circumstances 73 Fed. Reg. 33,977 (June 16, 2008). On November 20, 2013, Commerce published its final results for its First Sunset Review of Certain Steel Nails from China, finding that revocation of the ADD order would likely lead to the recurrence of dumping. See Certain Steel Nails From the People's Republic of China: Final Results of Expedited First Sunset Review of the Antidumping Duty Order, 78 Fed. Reg. 69,644 (Nov. 20, 2013); and Certain Steel Nails From the People’s Republic of China: Continuation of Antidumping Duty Order, 79 Fed. Reg. 1,380 (Jan. 10, 2014). (“CSN Order”). The CSN Order specifically finds that “[e]xcluded from the scope of this proceeding are roofing nails of all lengths and diameter, whether collated or in bulk, and whether or not galvanized. Steel roofing nails are specifically enumerated and identified in ASTM Standard F 1667 (2005 revision) as Type I, Style 20 nails.” Id. Between November 8, 2013 and June 5, 2014, S.T.O. made seven entries of steel nails from China, manufactured and exported by Hebei Ansing Fasteners Co., LTD., (“Hebei Ansing”) which are the subject of this internal advice. The following entry numbers are subject to this protest and international advice: Entry Number Date of Entry  xxx-xxxx952-9 November 8, 2013  xxx-xxxx156-5 January 21, 2014  xxx-xxxx929-5 March 6, 2014  xxx-xxxx245-3 April 4, 2014  xxx-xxxx440-0 April 23, 2014  xxx-xxxx825-2 May 7, 2014  xxx-xxxx526-5 June 5, 2014   The goods covered by these entries were described on the bills of lading and invoices as “roofing nails” and entered as not subject to ADD. Specifically, some of the commercial sales documents lists the various stock codes of nails commercially used for roofing. Many, not all, of these stock codes are traced to the nails covered by the invoices. However U.S. Customs and Border Protection (“CBP”) determined that the entries were subject to ADD per case A-570-909, CSN from China. CBP made this determination based on CBP’s San Francisco Laboratory Scientific Services Directorate’s (“LSSD”) report, which resulted from a sample of nails taken from S.T.O.’s March 12, 2014, entry, number xxx-xxxx931-1, manufactured by CANA (Tianjin) Hardware Industrial Co. This entry is not subject to this internal advice. The report concluded that “[t]he sample does not meet ASTM F1667 (2005 revision) as type I, style 20 roofing nails.” CBP concluded that, therefore, based on this report the nails covered by the entries that are the subject of this internal advice are subject to ADD case A-570-909. On April 25, 2016, Commerce issued a non-public liquidation message, instructing CBP to liquidate all shipments of CSN, subject to the scope of the CSN Order A-570-909, and exported by the PRC-wide entity entered during the pertinent period of review. See DOC Message No. 6116309 (Apr. 25, 2016). On May 2, 2016, CBP liquidated the above listed seven entries pursuant to Message Number 6116309 and assessed ADD at the PRC-wide rate. S.T.O. protested the liquation of its entries on July 14, 2016. S.T.O. asserts that the entries subject to the protest are “roofing nails” which are specifically excluded from the scope of the CSN Order and are not subject to ADD. Subsequently on November 15, 2016, your office sought internal advice on the above described protest and application for further review. ISSUE: Whether CBP properly assessed antidumping duties, pursuant to the CSN Order. LAW AND ANALYSIS: Generally, assessed antidumping 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). “Customs, incident to its ‘ministerial’ function of fixing the amount of duties chargeable, must make factual findings to determine ‘what the merchandise is, and whether it is described in an order’ and must decide whether to apply the order to the merchandise. LDA Incorporado v. United States, 79 F. Supp. 3d 1331, 1339 (Ct. Int’l Trade 2015). Pursuant to its ministerial function, however, CBP cannot “affect the scope of the order.” Id. Accordingly, CBP must follow Commerce’s instructions with regard to the entries of CSN from China at issue in this case. Additionally, “where the importer claims that Customs erred as a matter of fact by including its goods within the scope of the order, Customs’ determination is the proper subject for a protest. LDA Incorporado v. United States, 978 F. Supp. 2d 1359, 1367 (Ct. Int’l Trade 2014) (citing Xerox Corp. v. United States, 289 F.3d 792, 795 (Fed. Cir. 2002). On the other hand, if the scope of the order is unambiguous and CBP follows Commerce’s instructions, there is no decision that is made by CBP that would be protestable. See Mitsubishi Elecs. Am., Inc. v. United States, 44 F.3d 973, 977 (Fed. Cir. 1994) (holding that CBP has a ministerial role in liquidating antidumping duties and “cannot modify Commerce’s determinations, their underlying facts, or their enforcement”); HQ H258302 (Sept. 3, 2015) (finding that “because the scope of the antidumping and countervailing duty orders was clear and CBP acted in accordance with Commerce’s instructions, CBP acted in its ministerial capacity when it liquidated its entries” and the protest “failed to raise a protestable issue”). Specifically, CBP “is tasked with determining, for every imported product, whether the product falls within the scope of an antidumping or countervailing duty order. 19 U.S.C. § 1500(c). That necessarily entails evaluating both the product and the order.” Sunpreme, Inc. v. United States, 946 F.3d 1300, 1320-21 (Fed. Cir. 2020). “When merchandise may be subject to an antidumping duty order, Customs makes factual findings to ascertain what the merchandise is, and whether it is described in an order. If applicable, Customs then assesses the appropriate antidumping duty.” Id. (internal citation omitted). “In each instance, Customs is statutorily tasked with answering a yes-or-no question as to whether the order applies, in order to fix the duty owed. When the order is ambiguous, Customs is nonetheless called upon to answer the question.” Id. If the importer believes that CBP has made a mistake of fact and does not want its goods to be covered by the order, the remedy is to seek a scope ruling. See LDA Incorporado, 79 F. Supp. 3d at1342 n.12. Additionally, CBP enjoys a statutory presumption of correctness with regard to factual disputes. 28 U.S.C. § 2639(a)(1); Anhydrides & Chems., Inc. v. United States, 130 F.3d 1481, 1486 (Fed. Ci

Generally, assessed antidumping 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). “Customs, incident to its ‘ministerial’ function of fixing the amount of duties chargeable, must make factual findings to determine ‘what the merchandise is, and whether it is described in an order’ and must decide whether to apply the order to the merchandise. LDA Incorporado v. United States, 79 F. Supp. 3d 1331, 1339 (Ct. Int’l Trade 2015). Pursuant to its ministerial function, however, CBP cannot “affect the scope of the order.” Id. Accordingly, CBP must follow Commerce’s instructions with regard to the entries of CSN from China at issue in this case. Additionally, “where the importer claims that Customs erred as a matter of fact by including its goods within the scope of the order, Customs’ determination is the proper subject for a protest. LDA Incorporado v. United States, 978 F. Supp. 2d 1359, 1367 (Ct. Int’l Trade 2014) (citing Xerox Corp. v. United States, 289 F.3d 792, 795 (Fed. Cir. 2002). On the other hand, if the scope of the order is unambiguous and CBP follows Commerce’s instructions, there is no decision that is made by CBP that would be protestable. See Mitsubishi Elecs. Am., Inc. v. United States, 44 F.3d 973, 977 (Fed. Cir. 1994) (holding that CBP has a ministerial role in liquidating antidumping duties and “cannot modify Commerce’s determinations, their underlying facts, or their enforcement”); HQ H258302 (Sept. 3, 2015) (finding that “because the scope of the antidumping and countervailing duty orders was clear and CBP acted in accordance with Commerce’s instructions, CBP acted in its ministerial capacity when it liquidated its entries” and the protest “failed to raise a protestable issue”). Specifically, CBP “is tasked with determining, for every imported product, whether the product falls withi