H307924

HQ H307924 August 21, 2023 OT:RR:CTF:EPDR H307924 ND CATEGORY: Entry Center Director Industrial and Manufacturing Materials Center of Excellence and Expertise U.S. Customs and Border Protection 726 Exchange St., Suite 400 Buffalo, NY 14210 Attn: Nicholas Bishop, Supervisory Import Specialist Re: Application for Further Review of Protest Number 270418101555; Antidumping Duties; A-570-886; Polyethylene Retail Carrier Bags from the People’s Republic of China; Scope Dear Center Director, The purpose of this decision is to address the Application for Further Review (“AFR”) of Protest number 270418101555, filed by AESA International Inc. (“AESA”) on September 26, 2018, regarding the assessment of antidumping duties (“ADD”) pursuant to the ADD order in case A-570-886 (“PRC Polyethylene Bags Order”). This protest is designated the lead protest and addresses the identical facts and issues presented in protest number 270419103053 regarding twelve additional entries. FACTS: AESA entered 12 entries of polyethylene plastic rolls (“plastic roll bags”) from the People’s Republic of China (“PRC” or “China”) between March 26, 2017, and July 28, 2017. According to the Automated Commercial Environment (“ACE”) and the entry summaries (U.S. Customs and Border Protection (“CBP”) Form 7501), AESA entered the merchandise as type 01, meaning a formal consumption entry not subject to ADD, and under subheading 3923.29.0000, Harmonized Tariff Schedule of the United States (Annotated) (“HTSUSA”). Additionally, ACE and the entry summaries reflect that the country of origin and export is China, and that the manufacturer of the imported merchandise is Yingkou Longsheng Industrial Co. Ltd. According to AESA, the plastic roll bags were formed in the PRC into a continuous sleeve or lay-flat tube and printed with various designs. In its condition as imported, the rolls cannot be used as plastic bags because they contain no handles. After importation, the rolls are cut to length, heat-sealed to form the bottom of the bag, and stamped to form the top opening of the bag and, if necessary, a handle. AESA provided the Port with five samples of unfinished plastic roll bags, specifically LDPE produce bags and HDPE produce bags. The Port submitted the samples to the Laboratories and Scientific Services Directorate (“LSSD”) to determine the composition and measurements of the bags. Based on the samples provided by AESA and LSSD’s findings, the Port determined that AESA’s imported plastic roll bags are within the scope of the Anti-Circumvention Determination and therefore fall within the scope of the PRC Polyethylene Bags Order and are subject to ADD. The Port provided CBP Headquarters (“HQ”) with photos of the rolls. These photos appear to be rolls of plastic tubes, several of which have continuous print of store markings. The two sides of the roll appear to be sealed, and do not indicate any openings. The rolls do not appear cut to length, or to have any slit or cut marks. Polyethylene retail carrier bags (“PRCBs”) from the PRC are subject to ADD order A-570-886. See Antidumping Duty Order: Polyethylene Retail Carrier Bags from the People’s Republic of China, 69 Fed. Reg. 48,201 (Aug. 9, 2004). The scope of the order is as follows: The merchandise subject to this antidumping duty order is polyethylene retail carrier bags (PRCBs) which may be referred to as t-shirt sacks, merchandise bags, grocery bags, or checkout bags. The subject merchandise is defined as non-sealable sacks and bags with handles (including drawstrings), without zippers or integral extruded closures, with or without gussets, with or without printing, of polyethylene film having a thickness no greater than 0.035 inch (0.889 mm) and no less than 0.00035 inch (0.00889 mm), and with no length or width shorter than 6 inches (15.24 cm) or longer than 40 inches (101.6 cm). The depth of the bag may be shorter than 6 inches but not longer than 40 inches (101.6 cm). PRCBs are typically provided without any consumer packaging and free of charge by retail establishments, e.g., grocery, drug, convenience, department, specialty retail, discount stores, and restaurants, to their customers to package and carry their purchased products. The scope of the investigation excludes (1) polyethylene bags that are not printed with logos or store names and that are closeable with drawstrings made of polyethylene film and (2) polyethylene bags that are packed in consumer packaging with printing that refers to specific end-uses other than packaging and carrying merchandise from retail establishments, e.g., garbage bags, lawn bags, trash-can liners. Imports of the subject merchandise are currently classifiable under statistical category 3923.21.0090 of the Harmonized Tariff Schedule of the United States (HTSUS). This subheading also covers products that are outside the scope of this investigation. Furthermore, although the HTSUS subheading is provided for convenience and customs purposes, our written description of the scope of this investigation is dispositive. Id. Additionally, on March 25, 2014, the U.S. Department of Commerce (“Commerce”) issued its final determination of circumvention of the PRC Polyethylene Bags Order, determining “that imports of unfinished PRCBs from the PRC are circumventing the [PRC Polyethylene Bags Order].” Polyethylene Retail Carrier Bags from the People’s Republic of China: Affirmative Final Determination of Circumvention of the Antidumping Duty Order, 79 Fed. Reg. 16,292 (March 25, 2014) (“Anti-Circumvention Determination”). The scope of the circumvention inquiry [C]overs merchandise from the PRC that appears to be an unfinished PRCB which is sealed on all four sides, cut to length, and which appears ready to undergo the final step in the production process, i.e., to use a die press to stamp out the opening and create the handles of a PRCB. The unfinished PRCBs subject to this inquiry may or may not have printing and may be of different dimensions as long as they meet the description of the scope of the order. Id. Commerce directed CBP to continue to suspend liquidation and require a cash deposit of estimated duties subject to this inquiry entered on or after May 14, 2013. Id.; see also Commerce Message No. 4086302 (Mar. 27, 2014). On November 1, 2017, Commerce directed CBP to liquidate entries of PRCBs from the PRC entered for consumption between August 1, 2016, and July 31, 2017, at the cash deposit rate in effect on the date of entry. See Commerce Message No. 7305302 (Nov. 1, 2017). The cash deposit rate in effect on the dates of entry of the protested entries is 77.57%. See Commerce Message No. 4224215 (Aug. 11, 2004). On January 10, 2018, CBP issued a Notice of Action (CBP Form 29), notifying AESA that its plastic roll bags were subject to the PRC Polyethylene Bags Order based on Commerce’s affirmative final determination of circumvention of the PRC Polyethylene Bags Order. According to ACE, CBP subsequently rate advanced the entry, changed the entries to type 03, meaning a formal consumption entry subject to ADD, and changed the classification to subheading 3917.32.0020, HTSUSA. On April 6, 2018, CBP liquidated AESA’s entries pursuant to the instructions from Commerce in Message 7305302, applicable to case number A-570-886, at the 77.57% cash deposit rate in effect on the dates of entry. See Commerce Message No. 730503 (Nov. 1, 2017); see also Commerce Message No. 4224215 (Aug. 11, 2004). AESA filed protest number 270418101555 on September 26, 2018, alleging that CBP incorrectly assessed ADD on its entries. AESA makes two primary arguments. First, AESA argues that the merchandise at issue is not within the scope of the ADD order in case A-570-886 or any applicable anti-circumvention determination. AESA specifically argues that the scope of the PRC Polyethylene Bags Order covers PRCBs imported in their finished state but does not apply to AESA’s imported plastic roll bags because its rolls were continuous sleeves or

It is the opinion of your office that this protest meets the criteria for further review. We agree and are of the opinion that this protest involves question of fact which have not been ruled upon, namely whether the described imported plastic roll bags may be assessed ADD per the PRC Polyethylene Bags Order. See 19 C.F.R. § 172.24(b).We also note that the instant 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. CBP liquidated the protested entries on April 6, 2018. AESA filed its protest on September 26, 2018, which is within 180 days of the liquidation date.Generally, assessed ADD duties properly applied by CBP are not protestable. It is well settled that when assessing and collecting ADD duties, CBP follows Commerce’s instructions. “Customs has a merely ministerial role in liquidating ADD duties.” Mitsubishi Electronics America, 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 duties, together with interest, at the time of liquidation. See Fujitsu Ten Corporation of America v. United States, 21 C.I.T. 104, 107 (1997); American Hi-Fi International, Inc. v United States, 19 C.I.T. 1340, 1342-43 (1995). However, “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); see also Sunpreme, Inc. v. United States, 946 F.3d 1300, 1320-21 (Fed. Cir. 2020) (internal citation omitted). CBP “is tasked with determining, for every imported product, whether the product falls within the scope of an antidumping or countervai