Protest No. 5309-2015-100148; Antidumping duty; Liquidation instructions; Chlorinated isocyanurates; Trichloroisocyanuric Acid; Tri-chlor; 19 U.S.C. § 1514.

HQ H270110 January 31, 2017 DRA 4OT:RR:CTF:ER H270110 KF Port Director Att: Dekeisha Thomas U.S. Customs and Border Protection 230 N. San Houston Parkway, Suite 100 Houston, TX 77032 RE: Protest No. 5309-2015-100148; Antidumping duty; Liquidation instructions; Chlorinated isocyanurates; Trichloroisocyanuric Acid; Tri-chlor; 19 U.S.C. § 1514. Dear Port Director: The above-referenced Protest was forwarded to this office for further review, and was received on September 12, 2015. We have considered the points raised by your office and the Protestant. Our decision follows. FACTS: GWTC, Inc., (“GWTC”), protests the antidumping duty rate applied to four entries of Trichloroisocyanuric Acid (“Tri-chlor”) between June 1, 2012 and May 31, 2013. GWTC was the importer of record and the ultimate consignee for the Tri-chlor, a chlorinated isocyanurate subject to antidumping duty order A-570-898. See Message No. 4259308 (September 16, 2014). According to GWTC, the Tri-chlor was both manufactured and exported by Juancheng Kangtai Chemical Co., LTD (“Juancheng”). On May 10, 2005, the U.S. Department of Commerce (“DOC”) issued a final determination that chlorinated isocyanurates originating from the People’s Republic of China (“PRC”) were being sold at less than fair value to and within the U.S. See Notice of Final Determination of Sales at Less Than Fair Value: Chlorinated Isocyanurates from the PRC, 70 FR 24502. On November 16, 2011, the DOC published an administrative review of the antidumping duties applicable to particular exporters from the PRC, including Juancheng. See Chlorinated Isocyanurates From the PRC: Final Results of Antidumping Duty Administrative Review, 76 FR 70957. The DOC’s review yielded liquidation instructions specific to Juancheng, establishing a 2.66 percent cash deposit rate for all shipments of chlorinated isocyanurates exported by Juancheng from the PRC “on or after 11/16/2011,” or supplied by Juancheng to a non-PRC exporter. See Message No. 1322311 (November 18, 2011). The cash deposit rate applied upon entry is set at a rate equal to the shipment’s estimated duty rate. See Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity To Request Administrative Review, 80 FR 31017 (June 1, 2015). Liquidation of all chlorinated isocyanurate exported between June 1, 2012 and May 31, 2013 was suspended pending issuance of further instructions by the DOC. See Message No. 1322311 (November 18, 2011). The referenced liquidation instructions were made publicly available as part of the final administrative review published by the DOC. See Chlorinated Isocyanurates From the PRC: Final Results of Antidumping Duty Administrative Review, 76 FR 70957 (November 16, 2011). Based on the liquidation instructions within the DOC’s final administrative review, GWTC asserts that 2.66 percent is the appropriate cash deposit rate for its protested entries: Entry Date Entry Number  July 6, 2012 ***-******87  July 13, 2012 ***-******91  July 19, 2012 ***-******17  January 15, 2013 ***-******98   On March 31, 2014, CBP issued a Notice of Action regarding the January 15, 2013 entry which found the PRC-wide cash duty rate of 285.63 percent to be appropriate instead. CBP explained that since “there was no assigned specific case…for the listed exporter PARADISE TRADING AAA, S.A. and/or manufacturer JUANCHENG KANGTAI CHEMICAL CO., LTD,” the “all others case A570-898-000” classification was appropriate. The “all others” PRC-wide cash duty rate was 285.63 percent. See Message No. 1322311 (November 18, 2011). However, CBP did not liquidate the January 15, 2013 entry, or any prior protested entry, due to the suspension of liquidation instruction issued by the DOC. Id. On February 11, 2015, the DOC publicly lifted suspension of liquidation for chlorinated isocyanurates exported from June 1, 2012 to May 31, 2013. See Message No. 5042302. Accordingly, CBP received non-public liquidation instructions from the DOC which established Juancheng’s final antidumping liability for all chlorinated isocyanurates exported from June 1, 2012 to May 31, 2013. See Message No. 5042301 (February 11, 2015). The non-public liquidation instructions established a PRC-wide rate for all chlorinated isocyanurates exported by Juancheng during this period, save for entries imported by or sold to two entities. Neither GWTC nor Paradise is one of the entities designated for exception from the PRC-wide rate for receipt of Tri-chlor from Juancheng. CBP liquidated the protested entries on June 19, 2015 in compliance with DOC’s non-public liquidation instructions, applying the PRC-wide rate of 285.63 percent to the protested entries. ISSUES: Whether CBP properly implemented DOC’s liquidation instructions. LAW AND ANALYSIS: As an initial matter, we find that this protest meets the criteria for further review. We find that this protest was timely filed on July 6, 2015, within 180 days after the liquidation date of June 19, 2015. See 19 U.S.C. § 1514(c)(3)(A). We further find that this protest involves questions of law and fact which have not previously been ruled upon. See 19 C.F.R. § 174.24(b). Antidumping duties properly assessed by CBP are generally not protestable because CBP’s role in liquidating entries of merchandise subject to an antidumping duty order is “merely ministerial.” See Mitsbushi Electronics America, Inc. v. United States, 44 f.3D 973, 977 (Fed. Cir. 1994). However, the factual findings made by CBP to determine whether merchandise is subject to an antidumping duty order, and the amount of duty owed, fall within CBP’s protestable ministerial role. See Xerox Corp. v. United States, 289 F.3d 792, 794 (Fed. Cir. 2002); HQ H192395 (January 6, 2014); HQ H189455 (February 19, 2014). We note that CBP’s factual findings receive a presumption of correctness pursuant to 28 U.S.C. § 2639(a)(1). Consequently, a protestant bears the “burden to prove by a preponderance of the evidence” that CBP’s findings were incorrect. See Ford Motor Company v. United States, 157 F.3d 849, 855 (Fed. Cir. 1998); Aluminum Co. of America v. United States, 477 F.2d 1396, 1398 (C.C.PA. 1973). The protestable question underlying the issue of whether CBP properly implemented DOC’s liquidation instructions is which set of instructions are controlling for the protested entries. GWTC asserts the liquidation instructions within the final administrative review are controlling, which required CBP to implement the following: “[F]or all non-PRC exporters of subject merchandise which have not received their own rate, the cash deposit rate will be the rate applicable to the PRC exporter(s) that supplied that non-PRC exporter.” See Chlorinated Isocyanurates From the PRC: Final Results of Antidumping Duty Administrative Review, 76 FR 70957 (November 16, 2011). GWTC maintains that because CBP determined Paradise Trading AAA, S.A. (“Paradise”) was a non-PRC exporter lacking its own rate for the Tri-chlor entries, CBP was required to apply Juancheng’s 2.66 percent cash deposit rate to the entry as the PRC exporter that supplied Paradise. GWTC submitted entry documents in support of its position, which demonstrate that Juancheng was the PRC exporter who supplied Paradise for the July 6, 2012 entry based on the shipment’s Certificate of Origin and initial Bill of Lading. The entry documents submitted for the remaining protested entries are not sufficiently legible to demonstrate the same. Pursuant to the liquidation instructions within the final administrative review, CBP would have been required to apply Juancheng’s 2.66 percent cash deposit rate to the July 6, 2012 entry. We instead find that the controlling liquidation instructions are a set of non-public liquidation instructions issued to CBP. See Message No. 5042301 (February 11, 2015). DOC’s non-public liquidation instructions are controlling because they constitute the final determination of the antidumping liability applicable to “previously entered, but not yet liquidated, entries.” See Ugine & ALZ Belg., N.V. v. United States, 31 C.I.T. 1536, 1553 (2007). Unlike a cash deposit rate, set to equal Juancheng’s prospective antidumping liability rate, DOC’s non-public liquidation instructions set Juancheng’s actual antidumping liability rate for all chlorinated isocyanurates exported from June 1, 2012 to May 31, 2013. See Am. Signature, Inc. v. United States, 31 C.I.T. 190, 191 (2007) (“[a]t the completion of its investigation, Commerce issues a final determination…in which it may (and frequently does) adjust its initial estimate”). Consequently, DOC’s non-public liquidation instructions supersede the liquidation instructions contained within its prior administrative review relating to Juancheng’s prospective antidumping liability rate. The controlling non-public liquidation instructions issued by DOC required CBP to apply the PRC-wide antidumping liability rate of 285.63 percent to all chlorinated isocyanurates exported by Juancheng during the period of June 1, 2012 to May 31, 2013, save for two exceptions. See Message No. 5042301 (February 11, 2015). All four of the liquidated entries protested by GWTC fall within the specified time period. The entry documents for all four of the protested entries demonstrate that none of the importing or purchasing entities who transacted with Juancheng as an exporter satisfy an established exception. Therefore, CBP properly implemented DOC’s non-public liquidation instructions by applying a 285.63 percent antidumping liability rate to all the protested entries of Tri-chlor exported by Juancheng. CBP properly liquidated all four of the protested entries on June 19, 2015, within six months of receiving notice from DOC on February 11, 2015 that suspension of liquidation for the subject entries was lifted. 19 U.S.C § 1504(d). HOLDING: GWTC’s entries were properly liquidated at the PRC-wide rate of 285.63 percent and protest 5309-2015-100148 should be DENIED in full. No later than 60 days from the date of this letter, the Office of 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