Application of Further Review for Protest 4601-16-100548; Antidumping and Countervailing duties; Activated Carbon; Carbon Activated Corporation

HQ H279627 March 9, 2020 LIQ 4-01 OT:RR:CTF:ER H279627 ABH Port Director Port of Newark U.S. Customs and Border Protection 1100 Raymond Blvd Newark, NJ 07102 Attn: Jennifer Tagliaferro, Supervisory Entry Specialist Re: Application of Further Review for Protest 4601-16-100548; Antidumping and Countervailing duties; Activated Carbon; Carbon Activated Corporation Dear Port Director: The purpose of this correspondence is to address the application for further review (“AFR”) of Protest Number 4601-16-100548, dated June 7, 2016, filed by Carbon Activated Corporation (“CAC”), regarding the assessment of antidumping duties on activated carbon imported from the People’s Republic of China (“China”). FACTS: Between May 21, 2013 and January 9, 2014, CAC imported shipments of activated carbon from the exporter Ningxia Huahui Activated Carbon Co., Ltd. (“Ningxia”) under fourteen different entries at issue in this Protest. CAC entered the shipments as Type 03 entries because they were subject to the antidumping duty order regarding Certain Activated Carbon from China issued in April 2007 pursuant to Case No. A-570-904. Notice of Antidumping Duty Order: Certain Activated Carbon from the People’s Republic of China, 72 Fed. Reg. 20,988 (Apr. 27, 2007). Accordingly, U.S. Customs and Border Protection (“CBP”) suspended the liquidation of the entries until the U.S. Department of Commerce (“Commerce”) issued the liquidation instructions, Message No. 5348304 (Dec. 14, 2015), reflecting the final results of its administrative review covering the relevant period of review (“POR”) – April 1, 2013 to March 31, 2014. Certain Activated Carbon from the People’s Republic of China: Final Results of Antidumping Duty Administrative Review, 80 Fed. Reg. 61, 172 (Oct. 9, 2015) (“Final Results”). On October 23, 2015, Ningxia filed a complaint under U.S. Court of International Trade (“CIT”) Court No. 15-00291 appealing Commerce’s Final Results. On October 23, 2015, Ningxia filed a motion with the CIT seeking a preliminary injunction enjoining liquidation of the entries of subject merchandise that were exported by Ningxia and imported by ML Ball Company Inc. or Nichem Company. Ningxia Huahiu Activated Carbon Co., Ltd. v. United States, Court No. 15-00291, Dkt. No. 8 (Oct. 23, 2015). On October 26, 2015, the CIT issued a preliminary injunction prohibiting liquidation of Ningxia’ exports from China and imported into the United States by ML Ball Company Inc. or Nichem Company. On December 14, 2015, Commerce issued liquidation instructions to CBP under Message No. 5348304. Message No. 5348304 instructed CBP to liquidate entries of certain activated carbon from China exported by Ningxia Huahui Activated Carbon Co., Ltd. and entered, or withdrawn from warehouse, for consumption during the period 04/01/2013 through 03/31/2014, and assess an antidumping liability equal to 1.05 dollars per kilogram of subject merchandise. The liquidation instructions specifically mentioned the CIT injunction issued under Court No. 15-00291 and ordered CBP to continue to suspend liquidation of entries exported by Ningxia from China and imported by ML Ball Company Inc. or Nichem Company until further instructions were issued by Commerce. On December 16, 2015, CIT consolidated the appeal brought by Ningxia with other appeals brought with regard to the same Commerce Final Results under Consolidated Court No. 15-00286. On February 4, 2016, under that consolidated case number, Ningxia moved for a second preliminary injunction of liquidation. Jacobi Carbons AB, et al. v. United States, Consol. Ct. No. 15-00286, Dkt. No. 43 (Feb. 4, 2016). Ningxia sought an order prohibiting the liquidation of entries of subject merchandise that were exported by Ningxia and imported by Global Minerals, Inc. Id. In seeking the injunction, Ningxia stated that one reason for the delay in filing the injunction was that because Ningxia had “filed its injunction simultaneously with its complaint due to the Department’s 15-day liquidation policy and thus the importer had no time to consider and did not realize that [Ningxia’s] injunction did not include Global Minerals, Inc. Another reason was that Global Minerals, Inc. did not realize that [Ningxia’s] injunction was importer-specific and not exporter-specific.” Id. On February 5, 2015, the CIT issued a preliminary injunction prohibiting liquidation of Ningxia’s exports from China and imported into the United States by Global Minerals, Inc. Jacobi Carbons AB, et al. v. United States, Consol. Ct. No. 15-00286, Dkt. No. 44 (Feb. 5, 2016). On February 12, 2016, Commerce issued liquidation instructions to CBP under Message No. 6043305 pursuant to the CIT’s order. Message No. 6043305 required CBP to enjoin liquidation of entries of subject merchandise exported by Ningxia from China and imported into the United States by Global Minerals, Inc. On April 1, 2016, CBP liquidated all fourteen of CAC’s entries pursuant to Commerce’s liquidation instructions under Message No. 5348304 (Dec. 14, 2015). CAC makes two arguments. First, CAC argues that CBP did not properly give courtesy notice of the liquidations before executing the liquidations of the entries on April 1, 2016. CAC stated that it did not get a notice of action with regard to the liquidations and that an importer only could have known of the liquidation if they were physically in the customs house on April 1, 2016 – the date of liquidation. CAC argues that CBP generally notifies importers of proposed liquidations, “giving time to disagree with an action” before it is taken. According to CAC, the importer “was aggrieved by not having any advance notice of the pending liquidation.” Second, CAC argues that CBP must “unliquidate the entries so that the final court decision with respect to the amount of assessment can be determined.” CAC argues that Ningxia had, in appeals of prior PORs, sought a “blanket” injunction covering all of its exports and not limited its appeal or injunction to any particular importer. CAC states it was Ningxia’s intent in its litigation to challenge the accuracy of the Final Results and that CBP has an obligation to accurately liquidate the entries. CAC argues that “CBP cannot arbitrarily ‘choose’ not to reliquidate in this case merely because the rate may be reduced through litigation.” CAC states that “CBP has adopted a policy of accuracy over finality with respect to liquidation that must be fairly administered for these entries as well now that CBP is aware that the final results may not be lawful.” The Port disagrees and argues that because the entries were Type 03 entries subject to the antidumping order in AD Case No. A-570-904, the entries were properly liquidated pursuant to Message No. 5348304. The Port argues that there is no presumption or inference for inclusion in any appeal of Commerce’s Final Results and that CAC has provided no evidence that the entries at issue are the subject of judicial review. Accordingly, the Port argues that Message No 5348304 properly applies to the entries at issue and the entries were correctly liquidated pursuant to that message. ISSUES: Whether CAC received proper notice of liquidation. Whether CBP properly liquidated the subject entries. LAW AND ANALYSIS: As a preliminary matter, this protest was timely filed. Pursuant to 19 U.S.C. § 1514(c)(3)(A), a protest must be filed “within 180 days after but not before – (A) date of liquidation or reliquidation . . .” The entries at issue were liquidated on April 1, 2016. CAC filed its protest on June 7, 2016, well within the 180-day limitation after liquidation. 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 questions of law and fact which have not been previously ruled upon. 19 C.F.R. § 174.24(b). Whether CAC Received Proper Notice of Liquidation. CAC argues that it did not properly receive a courtesy notice of liquidation before notice was physically posted in the customs house. CAC argues that it was aggrieved by not having advance notice of the pending liquidation. Pursuant to 19 U.S.C. § 1500, “[t]he appropriate customs officer shall, under the rules and regulations prescribed by the Secretary . . . (e) give notice of such liquidation to the importer . . . in such a form and manner as the Secretary shall prescribe in such regulations.” In December 2016, CBP amended the relevant regulations, 19 C.F.R. § 159.9, to reflect that official notification of liquidation will no longer be posted at the customhouses or stations. Electronic Notice of Liquidation, 81 Fed. Reg. 89,375 (Dec. 12, 2016). Instead, effective January 14, 2017, notices of liquidation, suspension of liquidation, and extension of liquidation are posted electronically on the CBP Web site. Id. Additionally, mailed paper courtesy notices of liquidation have been eliminated, but CBP continues to endeavor to provide electronic courtesy notices of liquidation, extension, and suspension via a CBP-authorized electronic data interchange system to the electronic filer when entries liquidate or are extended or suspended. Id. At the time of CAC’s entry, however, the implementing regulation, 19 C.F.R. § 159.9, stated that “[n]otice of liquidation of formal entries shall be made on a bulletin notice of liquidation, Customs Form 4333 or 4335 . . . .” The regulation stated that the “bulletin notice of liquidation shall be posted for the information of importers in a conspicuous place in the customshouse at the port of entry . . . .” 19 C.F.R. § 159.9(b). The regulation also added that “Customs will endeavor to provide importers or their agents with Customs Form 4333-A, ‘Courtesy Notice,’ for entries . . . scheduled to be liquidated . . . .” Under this legal framework, the U.S. Court of Appeals for the Federal Circuit (“Federal Circuit”) addressed an argument similar to CAC’s and stated that, [t]he plain language of the implementing regulations is clear that the only notice of liquidation required is bulletin notice “posted for the information of importers in a conspicuous place in the customhouse at the port of entry.” 19 C.F.R. § 159.9(b) (1988). Courtesy notice is just that, a “courtesy,” and Customs’ providing, or failure to provide, such a notice cannot create any legally cognizable right in the importer. Goldhofer Fahrzeugwerk GmbH & Co. v. United States, 885 F.2d 858, 860 (Fed. Cir. 1989). Accordingly, 19 C.F.R. § 159.9(d) does not require CBP to provide a courtesy notice of liquidation, but merely states that CBP will endeavor to provide such notice. See Id.; HQ 225095 (May 23, 1994). CAC does not argue that notice was not properly posted at the customs house. Rather, CAC argues that “[a]n importer could only have known this liquidation occurred on April 1, 2016 if the importer was physically in the Long Beach [sic] customs house on that date.” CAC presents no evidence to indicate that CBP did not properly post the bulletin notice at the customs house. Accordingly, even though CAC may not have received a courtesy notice of the liquidations, CAC does not raise “any cognizable right in the importer.” See Goldhofer, 885 F.2d at 860. Whether CBP Properly Liquidated the Subject Entries. Generally, “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). CBP’s ministerial role is to follow the liquidation instructions and to compute the duty by applying the antidumping duty rate set by Commerce to the appraised value as determined by CBP. In this case, CBP properly followed the applicable Message No. 5348403 and properly liquidated CAC’s entries. Indeed, CAC does not argue that CBP did not properly follow the liquidation instructions. Rather, CAC argues that CBP should reliquidate and suspend the entries pending the outcome of litigation to ensure accuracy. While there is no question that the “basic purpose of the [antidumping] statute [is] determining current margins as accurately as possible,” Rhone Poulenc, Inc. V. United States, 899 F.2d 1185, 1190 (Fed. Cir. 1990), the determination of the margins is the domain of Commerce, not CBP. CAC’s argument that it should benefit from any change to the Final Results as litigated through the trade courts is unavailing because it is not a party to that litigation. The Federal Circuit has been clear that “[o]nce liquidation occurs, a subsequent decision by the trial court on the merits . . . can have no effect on the dumping duties assessed . . .,” even if the duties ultimately are determined to be erroneous. Zenith Radio Corp. v. United States, 710 F.2d 806, 810 (Fed. Cir. 1983). The CIT has also been clear that “[t]he statute specifically provides that Commerce will liquidate entries at the cash deposit rate in effect at the time of entry for those entries entered prior to notice of a decision, if such entries are not suspended by court order.” Snap-On, Inc., 949 F. Supp. 2d 1346, 1354 (Ct. Int’l Trade 2013) (citing 19 U.S.C. § 1516a(c)(2)). Pursuant to that statutory mandate, the CIT has held that “because [plaintiff] did not participate in a challenge to the investigation rate as applied to its entries when it had the opportunity to do so, or during any administrative review, it cannot benefit from the revised rate established for those entries that are the subject of the litigation regarding those rates.” Id. at 1355; see also Capella Sales & Svcs., 181 F. Supp. 3d 1255, 1257 (Ct. Int’l Trade 2016) (“Because Plaintiff did not participate in, and have liquidation of its entries enjoined pursuant to, the litigation that resulted in the ‘lawful rate’ calculated on remand and redetermination, it cannot claim entitlement to that rate . . . .”); Textiles Inc. v. United States, 28 C.I.T. 1304, 1308 (2004) (“An importer should not benefit from a lower rate established by a judicial or administrative decision if in fact the importer did not participate in the underlying proceedings.”). Thus, in order to benefit from a lower rate established by a judicial or administrative decision, the importer must participate in, and have liquidation of its entries enjoined pursuant to, the litigation that resulted in that lower rate. CAC does not argue that it is a party to the pending litigation of the relevant POR. Nor does CAC assert or provide evidence that its entries are subject to an injunction by the CIT. Rather, CAC argues that in the past Ningxia had fashioned its request for injunctions in the litigation of earlier PORs to include all its exports to all importers. CAC seems to be asking CBP to infer a similar intent by Ningxia for purposes of the entries at issue in this protest despite the plain language of the preliminary injunctions issued by the CIT. A review of the relevant injunctions for the POR at issue make it clear that the injunctions have been fashioned to be importer-specific. Commerce relayed that importer-specific injunction information to CBP through its Message No. 5348304 and Message No. 6043305. Neither the relevant CIT injunctions nor Commerce messages to CBP indicate that the entries exported by Ningxia and imported by CAC should be suspended pending judicial review. While Commerce is not required to calculate importer-specific dumping margins, their authority to do so has been upheld by the Federal Circuit. In Consol. Bearings Co. v. United States, the Federal Circuit stated that importers of the same merchandise can have different antidumping duties . . . . The character of the merchandise does not control the assessment of duties in review, but the market forces in play at the time of each separate import transaction. The simple fact that one importer imports the same merchandise as another importer does not necessary lead to the conclusion that they are subject to the same antidumping duties. Because sales prices vary from exporter to exporter and from time to time, separate entries of the same good may have different duties. 348 F.3d 997, 1004-05 (Fed. Cir. 2003); see also KYD, Inc. v. United States, 779 F. Supp. 2d 1361, 1372 (Ct. Int’l Trade 2007) (“To the extent possible, these assessment rates will be specific to each importer, because the amount of duties assessed should correspond to the degree of dumping reflected in the price paid by each importer.”) (citing Antidumping Duties; Countervailing Duties, 61 Fed. Reg. 7308, 7316 (Feb. 27, 1996)). Because CAC is not participating in the litigation and did not seek an injunction regarding its entries, CBP properly fulfilled its ministerial role and liquidated CAC’s fourteen entries pursuant to Commerce’s instructions in Message No. 5348304. HOLDING: Based on the above, CBP properly gave CAC notice of liquidation and properly liquidated CAC’s fourteen entries pursuant to Message No. 5348403. Accordingly, CAC’s protest should be DENIED IN FULL. 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 of 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, Craig T. Clark, Director Commercial & Trade Facilitation Division