Application for Further Review of Protest Number 4102-12-100047 Concerning Ball Bearings from Germany under Antidumping Order A-428-201

April 3, 2017 HQ H239385 PRO 2-05 H239385 SMS OT:RR:CTF:ER Port Director U.S. Customs and Border Protection 6747 Engle Road Middleburg Heights, OH 44130 Attn: Kimberly Williams, Import Specialist RE: Application for Further Review of Protest Number 4102-12-100047 Concerning Ball Bearings from Germany under Antidumping Order A-428-201 Dear Port Director: The following is our decision regarding the Application for Further Review (“AFR”) of Protest Number 4102-12-100047, filed by GE Aviation on March 19, 2012, which contests the antidumping rate assessed on its entries of ball bearings. We regret the delay in our response. FACTS: Between May 6, 2009 and March 29, 2010, GE Aviation, made 17 entries of ball bearings, exported by FAG Aerospace GmbH & Co. KG/Schaeffler Gruppe, from Germany, which are subject to antidumping order A-428-201. See Antidumping Orders: Ball Bearings, Cylindrical Roller Bearings, and Spherical Plain Bearings and Parts Thereof From the Federal Republic of Germany, 54 Fed. Reg. 20900 (May 15, 1989). The entry documents on all 17 entries list GE Aviation’s importer number. On the entry documents for 12 of the entries, the consignee number was that of GE Aviation. For the remaining five entries, another firm’s consignee number was listed and GE Aviation states it is an affiliate of that firm. All of the following 17 entries are subject to the instant protest. Date of Entry Entry Number Importer of Record Consignee  05/06/2009 xxx-xxxx376-9 GE Aviation “Parent Company”  05/15/2009 xxx-xxxx009-5 GE Aviation GE Aviation  05/26/2009 xxx-xxxx590-4 GE Aviation GE Aviation  05/26/2009 xxx-xxxx592-0 GE Aviation GE Aviation  06/01/2009 xxx-xxxx912-0 GE Aviation GE Aviation  06/08/2009 xxx-xxxx575-5 GE Aviation GE Aviation  07/07/2009 xxx-xxxx830-2 GE Aviation GE Aviation  07/17/2009 xxx-xxxx043-1 GE Aviation “Parent Company”  08/10/2009 xxx-xxxx524-3 GE Aviation “Parent Company”  09/04/2009 xxx-xxxx148-9 GE Aviation GE Aviation  09/04/2009 xxx-xxxx146-3 GE Aviation GE Aviation  01/14/2010 xxx-xxxx953-6 GE Aviation GE Aviation  02/22/2010 xxx-xxxx406-1 GE Aviation GE Aviation  03/01/2010 xxx-xxxx618-1 GE Aviation GE Aviation  03/15/2010 xxx-xxxx831-9 GE Aviation GE Aviation  03/22/2010 xxx-xxxx215-4 GE Aviation “Parent Company”  03/29/2010 xxx-xxxx617-1 GE Aviation “Parent Company”   On August 24, 2011, the Department of Commerce (“Commerce”) published the final results for certain respondents for the antidumping order and period at issue. See Ball Bearings and Parts Thereof From France, Germany, and Italy: Final Results of Antidumping Administrative and Changed Circumstances Reviews, 76 Fed. Reg. 52,937 (Aug. 24, 2011). On September 12, 2011, Commerce issued a non-public message to U.S. Customs and Border Protection (“CBP”) instructing CBP to liquidate entries of ball bearings and parts thereof exported by Schaeffler Technologies GmbH & Co. KG (formally Schaeffler KG) or FAG Aerospace GmbH & Co. KG, and “imported by or sold to (as indicated on the commercial invoice or customs documentation) to the firms listed,” at specific rates. See Message No. 1255303 (Sept. 12, 2011). GE Aviation was not listed in the liquidation instructions as having a specific rate. Commerce instructed that for all other shipments of ball bearings and parts thereof from Germany, CBP is required to assess antidumping duties at the “all-others” rate. Id. On October 4, 2011, Commerce notified CBP, in a non-public message, that the U.S. Court of International Trade (“CIT”) issued an injunction enjoining liquidation of ball bearings and parts thereof exported by Schaeffler Technologies GmbH & Co. KG (formally Schaeffler KG) or FAG Aerospace GmbH & Co. KG in Germany and “imported by or sold to (as indicated on the commercial invoice or customs documentation) the importers or customers listed” for the period of May 1, 2009 through April 30, 2010. See Message No. 1277307 (Oct. 4, 2011); Message No. 1294301 (Oct. 21, 2011). On February 3, 2012, CBP sought guidance from Commerce regarding the treatment of GE Aviation under this injunction. Commerce explained that GE Aviation was not a name reported during the administrative review, and that GE Aviation was not subject to the injunction under Message Number 1277307. See DOC Inquiry 20055 (Feb. 3, 2012); Message No. 1277307. Consequently, GE Aviation was not afforded a per-unit rate assigned any firm listed in Message Number 1255303, nor was it subject to the injunction of liquidation under Message Numbers 1277307 and 1294301. Accordingly, pursuant to Message Number 1255303, CBP liquidated all 17 entries, as imported by GE Aviation, on March 2, 2012, at the “all others” rate. GE Aviation timely protested this liquidation on March 19, 2012, contending that it should receive the specific importer/sold to party rate, as a division of a firm listed on the instructions of Message Number 1255303. On August 9, 2013, Commerce issued a non-public message, 3221309, notifying CBP that the injunction referred to in Message Number 1277307, dissolved on July 16, 2013, and instructing CBP to liquidate entries of ball bearings exported by Schaeffler Technologies GmbH & Co. KG (formally Schaeffler KG) or FAG Aerospace GmbH & Co. KG, and “imported by or sold to (as indicated on the commercial invoice or customs documentation) the firms listed” at specific rates. See Message No. 3221309 (Aug. 9, 2013). As GE Aviation was not specifically listed in Commerce’s liquidation instructions, it was not given its own rate, and your office assessed the “all-others” rate. ISSUE: Whether CBP properly liquidated GE Aviation’s 17 entries of ball bearings. LAW AND ANALYSIS: Generally, assessed antidumping duties properly applied by CBP are not protestable. It is well settled that when assessing and collecting antidumping duties, CBP follows Commerce’s instructions. “Customs has a merely ministerial role in liquidating antidumping 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 antidumping process is simply to follow Commerce’s instructions in collecting deposits of estimated duties and in assessing antidumping 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); and American Hi-Fi International, Inc. v United States, 19 C.I.T. 1340, 1342-43 (1995). Thus, CBP simply applies the antidumping duty rates determined by Commerce, to entries of merchandise in accordance with Commerce’s liquidation instructions. Accordingly, CBP must follow Commerce’s instructions with regard to the entries of ball bearings from Germany at issue in this case. However, inasmuch as GE Aviation protests the liquidation, i.e., disputes the application by CBP of Commerce’s liquidation instructions, this matter is protestable. See Xerox Corp. v. United States, 289 F.3d 792 (Fed. Cir. 2002). CBP received liquidation instructions on September 12, 2011, directing it to liquidate entries of ball bearings exported by FAG Aerospace GmbH & Co. KG, and “imported by or sold to” specific firms. See Message No. 1255303 (Sept. 12, 2011). However, on October 4, 2011, Commerce notified CBP that the CIT issued an injunction enjoining the liquidation of ball bearings imported by or sold to certain listed firms. See Message No. 1277307 (Oct. 4, 2011) and Message No. 1294301 (Oct. 21, 2011). The entry documentation for entry numbers: xxx-xxxx912-0, xxx-xxxx575-5, xxx-xxxx830-2, xxx-xxxx215-4, and xxx-xxxx617-1 (“the five entries”) lists the consignee number of one of the firms in the instructions as the ultimate consignee. For the remaining 12 entries, the importer of record and the consignee numbers are that of GE Aviation. The requirement to report ultimate consignee information at the time of entry or release is found in 19 C.F.R §142.3. Section 142.3, Customs Regulations, provides in pertinent part: “[w]hen merchandise is imported having been sold, or consigned, to a person in the United States, the name, street address, and appropriate identification number of that person, as provided in Section 24.5 of this chapter, must be shown on the entry documents (CBP Form 3461, 3461 ALT, 7501), or their electronic equivalents.” 19 C.F.R § 142.3 (a)(6). While all 17 entries were imported by GE Aviation, five entries were consigned to one of the firms listed in Commerce’s instructions, as shown on multiple CBP Form 7501s. Customs issued Directive No. 3550-079A, dated June 27, 2001, pertaining to ultimate consignee requirements at the time of entry or release. The directive, in part, stated that “[t]he ultimate consignee at the time of entry or release is defined as the party in the United States to whom the overseas shipper sold the imported merchandise.” Customs Directive No. 3550-079A at section 6.3 (June 27, 2001). See e.g., HQ H048943 (Apr. 29, 2009). As the ultimate consignee is treated as the sold to party, the five entries consigned to one of the listed firms were subject to the injunction referenced in Message Nos. 1277307 and 1294301. Accordingly, CBP should not have liquidated the five entries on March 2, 2012, because they were subject to the court order for which suspension of liquidation had not yet lifted. The instructions lifting the suspension of these remaining five entries were not issued until August 9, 2013. See Message No. 3221309 (Aug. 9, 2013). Thus, CBP should not have liquidated the entries until August 9, 2013. As the five entries were liquidated on March 2, 2012, contrary to a court injunction, the liquidation of the five entries was in violation of the CIT’s September 29, 2011, order temporarily enjoining Commerce and CBP from liquidating the subject entries. In instances “…where liquidations violated an order of this Court, there is no meaningful protest to be had [at] the administrative level nor is a determination of Customs really at issue.” Allegheny Bradford Corp. v. United States, 342 F. Supp. 2d 1162, 1169 (Ct. Int’l Trade 2004) (citing Eurodif S.A. v. United States, 306 F. Supp. 2d 1288 (Ct. Int’l Trade 2004) (other citations omitted). In Allegheny, Top Line imported tube fittings from Taiwan, which were subject to an antidumping order. The CIT issued an injunction on February 26, 2002, and on June 7, 2002, CBP liquidated the entries. The Court held that because of the voidance doctrine, CBP’s June 7, 2002, liquidation was null and void and had no legal effect. Id. The Court stated that, “the improper liquidations are void ab initio, and that it is inappropriate to subject a legal nullity to reliquidation and other administrative action before this Court may provide a remedy.” Id. “‘[T]he proper means to enforce an order of this Court against the Government is to seek relief in this court; it is not to file a protest with Customs.’” Id. at 1170 (citing Yancheng Baolong Biochemical Prods. Co., v. United States, 277 F. Supp. 2d 1349, 1364 (Ct. Int’l Trade 2003)). Similarly, in regard to the five entries in the instant case, the proper recourse would have been to seek relief at the CIT. As to the other 12 entries, Commerce’s liquidation instructions did not include GE Aviation, as a firm afforded a specific entity rate. See Message No. 1255303 (Sept. 12, 2011) and Message No. 3221309 (Aug. 9, 2013). CBP requested clarification from Commerce regarding the merchandise at issue and whether it should liquidate the entries imported by and consigned to GE Aviation at a specific rate, or under the “all-others” rate. Commerce clarified that GE Aviation was not a name reported during the administrative review, and therefore, it was not subject to the injunction issued under Message Number 1277307. See DOC Inquiry 20055 (Feb. 3, 2012); Message No. 1255303 (Sept. 12, 2011). As the importer number assigned to GE Aviation does not correspond to any of the firms listed on Commerce’s instructions, and GE Aviation is a separately incorporated entity, it cannot receive a specific rate, as well as, remain excluded from the injunction. Because Commerce has confirmed that GE Aviation is not subject to the injunction, it is subject to the liquidation instructions. Accordingly, the 12 entries imported by and consigned to GE Aviation, were properly assessed the “all-others” rate. See Message No. 1255303 (Sept. 12, 2011). GE Aviation requests that CBP evaluate the evidence and hold that it should be afforded a specific rate, as an affiliate of another entity. However, this is a determination that is made by Commerce. An antidumping administrative review may be requested by an interested party, an exporter or producer covered by the antidumping order, or an importer of the subject merchandise. See 19 C.F.R. § 351.213(b)(1)-(3). Thus, it is a matter for Commerce, not CBP, to determine affiliation. CBP’s ministerial role is to follow the liquidation instructions and to compute the duty by applying the antidumping duty rate set by Commerce. Therefore, in accordance with Commerce’s instructions, GE Aviation’s 12 entries of ball bearings, exported by FAG Aerospace GmbH & Co. KG/Schaeffler Gruppe and consigned to GE Aviation, without a separate rate, were properly liquidated at the “all-others” rate. HOLDING: Consistent with the decision set forth above, we find that the twelve entries imported and consigned by GE Aviation were properly liquidated at the all others rate. Relief for the liquidation of the remaining five consigned entries should have been sought at the CIT. Accordingly, protest 4102-12-100047 should be DENIED. In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the Protestant no later than 60 days from the date of this letter. Sixty days from the date of the decision, the Office International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution. Sincerely, Myles B. Harmon, Director Commercial and Trade Facilitation Division